Anywhere Gruyere: Cheese Name Generic, Not Indication Of Origin

• Published date: 16 June 2023
• Subject Matter: Consumer Protection, Intellectual Property, Food, Drugs, Healthcare, Life Sciences, Consumer Law, Trademark, Food and Drugs Law
• Law Firm: Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
• Author: Ms Margaret Esquenet and Jenevieve Maerker

The Fourth Circuit waded into the tricky area of geographical indications and emerged with some delightfully cheesy puns. Asked to decide whether the term "gruyere" signifies merely a particular type of cheese, or specifically cheeses produced in the Le Gruyère region of Switzerland and France, the Court concluded that "gruyere" is a generic term for a kind of cheese, and thus not registrable as a certification mark.

European Union regulations govern the use of certain registered designations for agricultural products, such as cheese, wine, olive oil, etc. These designations fall under one of several regulatory schemes, including "protected designation of origin" (PDO) and "protected geographical indication" (PGI). PDOs and PGIs establish criteria that agricultural products must meet to use the protected designation, typically including origination in a specified geographic area (to ensure that the foodstuffs possess the qualities that result from being grown or produced in a certain climate, soil environment, etc.), and production using specified methods (often aimed at preserving traditional know-how). The EU PDO/PGI system prevents use of protected terms by unauthorized entities within the EU and certain other jurisdictions. It is not, however, enforceable in the United States.

The United States does not have a legal system for protecting designations of origin as such. Instead, the use of specific terms to identify food items may be governed by regulations promulgated by the certain federal agencies, including the Food and Drug Administration (FDA), and potentially by trademark law. With respect to trademark protection, organizations seeking to control which producers may be permitted use certain terms to identify food items can attempt to register the relevant terms as certification marks. Certification marks are not used by the owner of the mark but rather by third parties whose goods or services the mark owner has certified as meeting certain established criteria. Like any mark, however, a certification mark must be distinctive. In other words, a term cannot serve as a certification mark if its significance to consumers is to indicate the generic type of goods or services, rather than that the source of those goods or services has been certified by an authoritative entity.

In the case of gruyere cheese, the FDA has established a "standard of identity." Under this standard, to be labeled legally as "gruyere" in the United States, cheese must be...