Judge Rules “Gruyere” is a Common Food Name and Not a Term Exclusive to Europe

A judicial ruling has determined that “gruyere” is a generic style of cheese that can come from anywhere. The decision reaffirms that all cheesemakers, not just those in France or Switzerland, can continue to create and market cheese under this common name.

In the judicial decision made public yesterday evening, the Consortium for Common Food Names (CCFN), U.S. Dairy Export Council (USDEC), National Milk Producers Federation (NMPF), and a coalition of other dairy stakeholders prevailed in their sustained fight to preserve the ability of all actors in the U.S. marketplace to use generic terms.

Senior Judge T. S. Ellis III of the United States District Court for the Eastern District of Virginia upheld the August 5, 2020, precedential decision of the U.S. Patent and Trademark Office’s (USPTO) Trademark Trial and Appeal Board.

“Not only is this a landmark victory for American dairy farmers and cheese producers who offer gruyere, this win sets a vital precedent in the much larger, ongoing battle over food names in the United States,” said Jaime Castaneda, executive director for CCFN. “The European Union has tried for years to monopolize common names such as gruyere, parmesan, bologna or chateau. This verdict validates that we’re on the right path in our fight on behalf of American food and wine producers to preserve their ability to use long-established generic names.”

According to the Court’s decision, the arguments of the French and Swiss associations were “insufficient and unconvincing” and CCFN presented “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.”

Meanwhile, Europe continues its aggressive and predatory efforts to confiscate names that entered the public domain decades ago. The latest attack was launched by the French and Swiss gruyere associations which had sought to register “Gruyere” as a certification mark in the United States, thereby enabling them to prevent use of the generic term by others in the U.S. marketplace. The USPTO determined last year that the application should be denied, in the process upholding the widespread generic use in the U.S. of the term “gruyere.”

“French and Swiss gruyere producers already have access to the U.S. market and the use of distinctive trademark logos,” noted Castaneda. “In fact, the Swiss association has already registered a logo certification mark with the USPTO for ‘Le Gruyère Switzerland AOC’ to help it uniquely brand Swiss gruyere. Despite this, both foreign associations appealed the USPTO’s ruling to the federal court last year.”

With support from USDEC and NMPF, their member companies, and non-member companies that contributed to supporting the opposition, CCFN dedicated extensive time and resources throughout the appeal process to demonstrate the extensive use of gruyere in the U.S. marketplace and persuasively argue that all cheesemakers and their customers should retain their rights to continue to produce and sell gruyere in the United States.

“This is a huge victory for common sense and for hard-working manufacturers and dairy farmers,” said Krysta Harden, USDEC president and CEO. “When a word is used by multiple companies in multiple stores and restaurants every day for years, as gruyere has been, that word is generic, and no one owns the exclusive right to use it. We are gratified that Judge Ellis saw this straightforward situation so clearly and upheld the USPTO Trademark Trial and Appeal Board’s finding that gruyere is an established generic term.”

“NMPF continues to firmly oppose any attempt to monopolize generic names like gruyere and to reject blatant European market-share grabs designed to limit competition,” said Jim Mulhern, NMPF president and CEO. “Today’s announcement is a landmark win for American dairy farmers and the commonly named cheeses they produce and sell around the world.”

CCFN, USDEC, and NMPF support valid geographical indications (GIs) – compound names associated with specialized foods from regions throughout the world – when used in good faith rather than to establish unfair trade barriers to the sale of common name foods and beverages.

NMPF Urges USTR to Enhance Efforts to Protect Use of Common Cheese Names

NMPF joined with USDEC to submit comments on Jan. 28 to the U.S. Trade Representative’s Office urging a more robust approach to preserving U.S. cheesemakers’ ability to export their products that rely on common cheese names such as parmesan, feta, asiago and others. The submission also voiced strong support for more detailed comments filed by the Consortium for Common Food Names. Both were filed in response to USTR’s call for input to inform its annual Special 301 Report on Intellectual Property issues that documents key IP challenges facing U.S. companies and what USTR is doing to address them.

NMPF noted in the comments that EU use of FTAs to erect barriers to competition “creates a deeply uneven playing field that makes it much more difficult to successfully export the products that American workers have created using milk from U.S. farms.” To address this, NMPF urged the Administration to “secure firm and explicit commitments assuring the future use of specific generic food and beverage terms targeted by or at risk of EU monopolization efforts” and noted that last year more than 160 Senators and Republicans had urged the pursuit of that policy.

Bipartisan Congressional Letter Calls for Stronger U.S. Approach to Preserving Common Food and Wine Terms

A coalition of leading farm and agricultural groups are applauding a bipartisan letter sent today by 111 members of Congress urging stronger protections for American-made food and wine exports using common terms. This is an important message regarding the need for enhanced U.S. efforts to combat the European Union’s (EU) attempts to ban U.S. exports of cheese, meat and wine products that are labeled with common terms – such as parmesan, bologna or chateau.

“Congress has spoken loudly; it is time for stronger action by the U.S. government. For far too long, Europe has used unjustified trade barriers to block competition from high-quality American-made cheese, meat and wine exports. Europe is undermining global trade rules and weakening intellectual property system protections internationally. Today’s letter is an important reminder that we must raise the bar in our efforts in order to prevail in creating agricultural trade policy that works for the world, not just the European Union,” said Jaime Castaneda, Executive Director of Consortium for Common Food Names.

The letter asks the U.S. Trade Representative (USTR) and U.S. Department of Agriculture (USDA) to make safeguarding common food and wine terms a core policy objective in all current and future trade negotiations. The effort was led by Reps. Jim Costa (D-CA), Jodey Arrington (R-TX), Angie Craig (D-MN), Dusty Johnson (R-SD), Ron Kind (D-WI), Mike Gallagher (R-WI), Jimmy Panetta (D-CA) and Mike Kelly (R-PA).

“The EU’s ban on common cheese terms has already impeded U.S. dairy exports but even more severe consequences for our industry lie ahead if the EU is allowed to continue these unfair trade practices. Preserving export opportunities for American-made cheeses and other products labeled with common terms must take priority in all future trade negotiations. I applaud Congress and the leaders of this effort for setting this important precedent in defense of American-made exports,” said Tom Vilsack, president and CEO of U.S. Dairy Export Council.

“Creating false barriers to block exports denies families around the world the high-quality food America’s farmers and ranchers produce. It’s trade manipulation. We applaud the U.S. government for its efforts to remove unfair trade practices that keep our nation from competing in the global marketplace,” said American Farm Bureau Federation President Zippy Duvall.

“The European Union has for too long unjustifiably and erroneously attempted to restrict trade in common food name products, including meat exports from the U.S. The policy advocated in the bipartisan letter sent today to USDA and USTR will advance critical safeguards for common food name products in international trade and will enable America’s meat and poultry packers and processors, agricultural producers and food manufacturers to compete on a level playing field with their counterparts in the EU. We thank members of Congress for their leadership, and we stand ready to work with the Administration to defend against anti-competitive and protectionist policies pursued by trading partners that serve only to impede U.S. meat and poultry exports,” said Julie Anna Potts, CEO of the North American Meat Institute.

“NASDA Members work tirelessly with the federal government to open new doors for agricultural producers around the world. We encourage the U.S. Trade Representative (USTR) and U.S. Department of Agriculture (USDA) to amplify the importance of common food and wine terms as a core policy objective to successful free trade negotiations in the future. Doing so will ensure consumers are able to access the full bounties of our farmers and ranchers around the world,” said National Association of State Departments of Agriculture CEO Dr. Barb Glenn.

“America’s dairy farmers have been unduly harmed by the EU’s efforts to limit market opportunities for U.S. dairy products. For years, the EU has sought to ban high-quality American-made cheeses, putting U.S. dairy jobs at risk and limiting economic growth in the rural communities that rely on a healthy dairy industry.  I appreciate the important work being done by Congress to ensure that U.S. trade negotiators must have all necessary tools at their disposal to fight back against the EU’s destructive agenda,” said Jim Mulhern, president and CEO of National Milk Producers Federation.

“We have watched time and again as the EU has gone well beyond protecting legitimate GIs to erect trade barriers that benefit their own producers at our expense. The recent EU-China agreement on GIs is a perfect example of how the EU abuses GIs for their own gain. The U.S. must do more to ensure a level playing field for common food names, grape varietal names and traditional terms and we are grateful to these Representatives for supporting this effort,” said Bobby Koch, President and CEO of Wine Institute.

In July, 61 Senators sent a similar letter requesting that the U.S. government enhance protections for common food and wine terms.