Europe has a centuries-old cultural and legal history of protecting goods produced in certain regions. For example, it is illegal in countries that have signed certain treaties to market sparkling wine as “champagne” unless it comes from the Champagne region of France and follows certain other rules. The rest is, well, sparkling wine. Other products from European countries have similar protections—including Gruyère cheese produced in the Gruyère region on the France-Switzerland border.
The United States is a different story. Names for food products can certainly be trademarked, and certification marks, such as those certifying that a product was made in a certain geographic region, also exist. However. those geographic certification marks are harder to attain in the US than in the EU. The differences ripened slowly during a two-decade battle in which European cheesemakers created a big stink over the use of the name “gruyere” in the United States.
Gruyère is a semi-soft cheese with a mild flavor. In Europe, the name “Gruyère” can only be applied to cheese made on the border of France and Switzerland, and then aged in a particular way. In the United States, no such rule applies, even though—according to the FTC—the cheese has been both imported to and produced in the United States for decades.
A Well-Aged Argument
In 2010 and 2015, Switzerland’s Interprofession du Gruyère (IDG) and France’s Syndicat Interprofessionnel du Gruyère (SIG) applied to the U.S Patent and Trademark Office (USPTO) to register the name “Gruyère” as a certified mark. The USPTO’s Trademark Trial and Appeal Board (TTAB) denied registration, finding that the term “gruyere” was generic for a type of cheese that could come from anywhere. The TTAB was responding at least in part to opposition from U.S. cheese producers, including the U.S. Dairy Council.
In 2020, IDG and SIG filed a lawsuit in the Eastern District of Virginia, seeking to overturn the TTAB decision. That court ultimately ruled in favor of the opposers, finding that “the factual record in this case points indisputably to the conclusion that cheese purchasers in the United States understand the term GRUYERE to refer to a generic type of cheese without reference to the geographic location where the cheese is produced.” In support of this conclusion, the district court noted that the majority of gruyere cheese imported to the U.S. was from the Netherlands or Germany. The European cheesemakers appealed to the Fourth U.S. Circuit Court of Appeals, which handed down a decision in March finding that consumers perceived the word “gruyere” as generic, not from a particular region. The majority wrote that “when purchasers walk into retail stores and ask for gruyere, they regularly mean a type of cheese, and not a cheese that was produced in the Gruyère region of Switzerland and France.”
Gruyère and Consumer Perception
This series of decisions underscores how consumer perceptions are factored into trademark decisions. The court found that when U.S. consumers encounter gruyere in grilled cheeses, on charcuterie boards, and atop French onion soup, they do not associate it with the France-Switzerland border region or Alpine grass-grazing cattle. The trial court did not rely on a survey to determine this—an issue raised by the IDG and SIG on appeal—but reliable consumer perception surveys could be, and frequently are, used in these types of disputes to determine whether consumers believe a product can be produced only in a specific region or a specific way. In fact, the Fourth Circuit, quoting Convenient Food Mart, Inc. v. 6-Twelve Convenient Mart, Inc., 690 F. Supp. 1457, 1461 (D. Md. 1988), noted that “survey evidence has become ‘almost de rigueur in litigation over genericness.’”
MMR Strategy Group designs reliable consumer surveys to test genericness, likelihood of confusion, and other questions important in trademark and advertising law. Our survey evidence has been used in decisions of the TTAB, federal courts, and other regulatory bodies. If you require a consumer perception survey to support a trademark dispute, contact MMR Strategy Group.