On December 15, 2021, the Federal District Court for the Eastern District of Virginia upheld an administrative decision finding that, in the United States, “gruyere” is a generic term for a type of cheese, and therefore ineligible for legal protection through the U.S. Patent and Trademark Office (USPTO). Gruyère is a geographic region of Switzerland and France where people have been culturing cheese for centuries. Despite this history, the Court found that through a process sometimes referred to as genericization or “genericide” the connection between the term “gruyere” and its Swiss and French roots has nullified over time. Put another way, the Court’s decision affirmed that cheeses can be labeled as “gruyere” by American retailers, even if they originated outside Europe’s Gruyère region.
Swiss Cheese. Photo by Flickr user Smabs Sputzer (1956-2017), November 24, 2012. Used under license CC BY 2.0.
I thought this decision presented an opportunity to explore a few topics. Below you will find the case’s chronology, an introduction to the administrative law functions of the USPTO, explanations of some trademark terms and processes, and resources to consult to learn more about these concepts.
United States Patent and Trademark Office
This case originated as a result of two European consortiums, the Swiss Interprofession du Gruyère and the French Syndicat Interprofessional du Gruyère (applicants), filing a certification mark for the term “gruyere” with the USPTO. A certification mark is akin to a designation of authenticity; it can be used to confirm that a product comes from a particular region or meets a strict quality standard. Federal law defines a certification mark as “any word, name, symbol, or device” used “to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics” of goods. In this instance, the applicants sought a certification mark to demonstrate that cheeses labeled “gruyere” originate “in the Gruyère region of Switzerland and France.”
The applicants’ filing was not novel. Since 1953, “Roquefort” has had an active certification mark with the USPTO to indicate that the product “has been manufactured from sheep’s milk only, and has been cured in the natural caves of the community of Roquefort, Department of Aveyron, France.” Likewise, “Cognac” is a certification mark identifying a brandy that has been distilled in a specific region of France. Conversely, the U.S. Court of Appeals for the Federal Circuit held that “Chablis” is a generic term applied to wine.
