Periodically, I like to start fights with Europeans on Twitter about geographical indications. It's not a perfect breakdown by country/continent, but it mostly lines up as a "new world" vs. "old world" fight. Recently I started a good one based on a U.S. federal court ruling that Gruyere is a generic term. The Twitter fight was based on just a news story about the ruling, but now we have the actual decision, which is here (it has already been appealed). Twitter is a terrible place to quote long documents (although people try anyway), so I'm posting excepts here. If anyone wants to argue, feel free to do it in the comments here or over on Twitter!
The following are some key excerpts from the case.
First up, the central question:
The central question presented by this case is whether cheese purchasers in the United States understand the term GRUYERE to refer only to a specific type of cheese produced in the Gruyère region of Switzerland and France or whether cheese purchasers in the United States instead understand GRUYERE as a generic term which refers to a type of cheese regardless of where the cheese is produced.
Now some factual background:
GRUYERE cheese has been granted protected status in Europe. Specifically, in 2011, the European Union recognized Swiss GRUYERE with a protected designation of origin (“PDO”).
...
Cheese produced in the United States has been sold as GRUYERE since at least 1987. At that time, Roth Käse, an American cheesemaker, imported Swiss-style manufacturing equipment and began producing cheese in Wisconsin which was labeled and sold as GRUYERE in the United States.
As to the determination of whether a term is generic:
It is undisputed that “[w]hether an asserted mark is generic or descriptive,” which is the central issue in this motion, “is a question of fact.”
OK, back to the facts then. Here was a key one for the judge:
The term GRUYERE has been applied to non-Swiss, non-French-produced cheeses by U.S. cheesemakers and cheese retailers for decades. Not until 2012 did plaintiffs begin efforts to control the use of the term GRUYERE in the United States, and those efforts have met only limited success. Indeed, many prominent retailers continue to use the term GRUYERE without respect to the geographic origin of the cheese, and defendants have introduced undisputed evidence that hundreds of thousands of pounds cheeses labeled as GRUYERE are either produced in the United States or imported from regions other than the Gruyère region of Switzerland and France and sold in the United States every year.
And back to the central issue, whether the term Gruyere has become generic:
the central issue in this matter is whether the term GRUYERE has become generic for a certain type of cheese and is no longer understood to refer only to cheese which comes from the Gruyère region of Switzerland and France. Also as noted, the legal principles that govern genericness are well-settled. It is textbook law that “generic terms can never obtain trademark protection.”
How do you determine whether a term is generic? Like this:
the Federal Circuit has explained that “the relevant public’s perception is the primary consideration in determining whether a term is generic.”
...
Although the term GRUYERE may once have been understood to indicate an area of cheese production, the factual record makes it abundantly clear that the term GRUYERE has now, over time, become generic to cheese purchasers in the United States.
...
The record evidence provides overwhelming evidence that cheese purchasers in the United States understand the term GRUYERE to be a generic term which refers to a type of cheese without restriction as to where that cheese is produced. The record includes three categories of evidence: (1) existing U.S. regulations permitting the use of the term GRUYERE on cheese regardless of where the cheese is produced; (2) commercial and government data showing the widespread sale and import of GRUYERE cheese produced outside the Gruyère region of Switzerland and France; and (3) evidence showing that the term GRUYERE is commonly used in dictionaries, media communications, and cheese industry events and materials to refer to a type of cheese without respect to where the cheese is produced.
The judge then goes through the evidence for about 15 pages.
I have no idea what's going to happen on appeal, but it seems to me that just about all geographical indication terms are generic in the U.S., and the Europeans (and others) are going to lose most of their battles over this issue. What will be interesting is the fight in third country markets. Those markets are still up for grabs, and perhaps some future U.S. administration will drop the usual obsessions with "trade deficits" or "great power competition" and concentrate its energy on the existential battle over the appropriate terms for describing cheese.
