On Tuesday, Interprofession du Gruyère and the Syndicat Interprofessionnel du Gruyère appealed the case of Interprofession Du Gruyere, et al. v. U.S. Dairy Export Council et al. to the Fourth Circuit Court of Appeals.
The dispute at the district court level turns on whether the term GRUYERE should receive geographic trademark protection, so it may only be used to identify and describe cheeses produced in certain portions of Switzerland and France, or whether the term GRUYERE is generic. Judge T.S. Ellis III of the Eastern District of Virginia ruled in favor of U.S. cheesemaker defendants, International Dairy Foods Association, U.S. Dairy Export Council, Atalanta Corporation and Intercibus, Inc., holding that GRUYERE is a generic term ineligible for trademark protection.
The appellants are European consortiums of gruyère cheesemakers with the Interprofession du Gruyère being a corporation from Switzerland and the Syndicat Interprofessionnel du Gruyère a French Corporation. According to the court’s opinion, in 2015, the appellants filed a certification mark with the USPTO for GRUYERE that would certify that any cheese bearing the mark originated from the Gruyère region of Switzerland and France.
Subsequently, the defendants filed an opposition to the plaintiff’s application for the certification mark arguing that cheese purchasers in the United States view GRUYERE as a generic term referring to a type of cheese that can be produced anywhere. Following the development of an extensive record and a proceeding by the Trademark Trial and Appeal Board, the Board sustained the defendants’ opposition stating the term GRUYERE had become generic.
Following the Trademark Trial and Appeal Board’s opinion, the European consortiums filed the civil action in the Eastern District of Virginia contesting the board’s decision. Following discovery and additional fact finding, the defendant’s filed a motion for summary judgment arguing again that GRUYERE was a generic term.
When viewing the facts in the light most favorable to the plaintiffs, as required under summary judgment, the Fourth Circuit held that although GRUYERE may have once been understood to indicate an area of cheese production and is granted protected status in Europe, “the factual record makes it abundantly clear” that the term GRUYERE has now become generic to U.S. purchasers.
Specifically, the court noted that FDA regulations allow cheese to be labeled GRUYERE regardless of where the cheese is produced, the record confirmed that a large amount of cheese produced outside the Gruyère region is imported and produced in the United States that is labeled as GRUYERE and common usage, reference materials, media coverage and industry practice confirms that the term has become generic.
Following the lower court’s opinion, the plaintiffs appealed the decision to the Fourth Circuit Court of Appeals. On appeal, Interprofession du Gruyère and the Syndicat Interprofessionnel du Gruyère are represented by Jennison & Shultz, P.C. and Fross Zelnick Lehrman & Zissu, P.C.. The defendants were represented by McClanahan Powers, PLLC and Godfrey & Khan, S.C. in the Eastern District of Virginia.