U.S. Patent and Trademark Office Affirms Generic Status of "Gruyere"
The Consortium for Common Food Names (CCFN) sent a letter today to the United States Patent and Trademark Office (USPTO) commending their decision to reject the trademark applications for "Le Gruyere" and "Le Gruyere Switzerland AOC". In its rejection notice, USPTO stated that " the evidence of record clearly shows that the U.S consumer views gruyere as a style of cheese that can be made anywhere and is not just a cheese from Gruyere, Switzerland." CCFN commended USTPO's work in evaluating the facts of the case and drawing a conclusion that is based on a common sense approach to generic names that protects both consumers and producers.
In March USPTO found that "The existence of 7 U.S. cheese manufacturers of gruyere cheese and the wide spread generic internet and dictionary usage made of record clearly demonstrates that gruyere has lost its geographical significance and is now viewed as a genus of cheese." Other generic indication elements CCFN pointed to in its letter to USPTO include the long-term existence of a U.S. standard of identity for gruyere; the presence of a gruyere category which is open to all applicants in the World Cheese Championship, held biannually in Wisconsin; citation by the World Customs Organization as an example of a type of cheese category; and specific mention by name in multiple countries' tariff schedules in a manner that does not restrict imports under those lines solely to Switzerland.
In rejecting the applications, USPTO pointed out the need for the applicant, the Interprofession du Gruyère, to disclaim use of "gruyere". A disclaimer is a statement to attest that the applicant of a trademark does not claim exclusive rights to an unregistrable component of a trademark (i.e. to the generic term "gruyere" in this case). CCFN would not, in principle, be opposed to a trademark for "Le Gruyere Switzerland AOC" but this would be contingent on the application including a specific disclaimer for "gruyere" to reflect its generic status and preserve the right of anyone to make this type of cheese.
A core part of CCFN's mission is to promote a common ground approach to food name protections. The pursuit of trademarks or geographical indications that protect compound terms (e.g. Le Gruyere Switzerland AOC) while clearly affirming the right to broad use of the common element in that term (e.g. gruyere) would grant producers of truly distinctive products the ability to protect that product while also making room for the fair use of generic terms.
USPTO's logical finding is an important victory, not just for producers of gruyere outside of Switzerland, but for producers of all types of common name products. It is heartening to know that USTPO is carefully assessing these cases with an eye towards protecting the rights of all stakeholders.
But this is just one of many pending actions, in the U.S. and abroad, that concerns common food products with similar name profiles. CCFN will continue to work with, and monitor the decisions of bodies such as USTPO to ensure that future regulatory actions that affect the producers and consumers of generic products, such as gruyere, will not go forward without their voice being heard.
The Consortium for Common Food Names is an independent, international non-profit alliance that represents the interests of consumers, farmers, food producers and retailers. Those interested in joining the effort can find information at www.CommonFoodNames.com.