Our American friends retreat into a cheese

The world of cheese is in full ferment at the beginning of this new year, after a court in the State of Virginia (United States) considered in its decision that “although the term gruyère may once have been understood to indicate an area of cheese production, the factual record makes it abundantly clear that the term gruyère has now, over time, become generic to cheese purchasers in the United States“.

With this decision, the American judge opens up the possibility for any cheese producer to call his cheese Gruyère, even if it does not meet the criteria to be so and even if it is in no way Gruyère.

However, in Switzerland and France, as well as in the rest of the European Union, Gruyère is a protected geographical indication (PGI) whose specifications require that the cheese come from the Gruyère region and that the latter have a slightly damp texture with average spring and crumble, be in the shape of a wheel weighing between 55 and 88 pounds, and exude fruity notes.

The dispute that led to this controversial decision has been opposing the Gruyère interprofessional organization and the U.S. Dairy Export Council, an American association for the export of dairy products, for several years now.

If the latter have won a first battle, the cheese war is not yet won. Indeed, the Gruyère interprofession has already announced that it will appeal this decision.

Moreover, this decision seems to be placed from the point of view of trademark law where the notion of degeneration of the sign has its important.

However, the name Gruyère is a protected geographical indication in Europe and it cannot lose its protection, even if it is used generically by consumers.

Thus, even if the U.S. Dairy Export Council were to win its appeal, it could not flood the European market with its fake Gruyère, as it would be detrimental to the IGP Gruyère.

As for the United States, the angle of attack for the Europeans could be to obtain a bilateral agreement for the recognition of the IGP Gruyère, which would then put an end to all discussions.

Will the U.S. Dairy Export Council organization, using the name Gruyère without constraint, manage to “retreat into a cheese” as the consecrated French expression wants it, where the cheese here designates a lucrative and restful situation?

To be continued…

– Philippe BOHLAND, IP Attorney and Partnet at Mark & Law