Europe protects cultural goods and traditions in specific regions through legal instruments. One example is Champagne: under international agreements, sparkling wine may be marketed as Champagne only if it originates from the Champagne region of France and complies with specific production standards. Products made elsewhere are sparkling wine. Similar protections apply to other European food products, including Gruyère cheese produced in the Gruyère region along the France–Switzerland border.
We take a different approach to production protections in the United States, where food names may be protected through trademarks, and certification marks may be used to signal geographic origin. Protections on production are more difficult to secure in the United States than in the European Union. These differences came into sharp focus during a protracted dispute over the use of the term “gruyere” in the United States, a conflict that unfolded over more than two decades.
“Groo-YAIR”
Gruyère is a semi-soft cheese with a mild flavor, produced in a defined region of France and Switzerland and aged according to specific requirements. In the United States, no comparable restriction applies. According to findings cited by the courts, gruyere cheese has been imported into and produced within the United States for decades without geographic limitation.
A Well-Aged Argument
In 2010 and again in 2015, Switzerland’s Interprofession du Gruyère and France’s Syndicat Interprofessionnel du Gruyère attempted to register “Gruyère” as a certification mark with the US Patent and Trademark Office. The applications were reviewed by the Trademark Trial and Appeal Board, which denied registration. The TTAB concluded that “gruyere” was generic in the United States, referring to a type of cheese rather than to cheese produced in a specific geographic region. The decision followed opposition from several United States cheese producers and trade organizations.
In 2020, the European cheesemakers filed suit in the Eastern District of Virginia to overturn the TTAB’s decision. The district court ruled in favor of the opposers (the American cheese producers). The court relied on the record, which demonstrated that United States consumers understand the term “gruyere” to describe a generic type of cheese, without reference to geographic origin. Among other things, the court further noted that most gruyere cheese imported into the United States originated from countries such as the Netherlands and Germany, rather than from France or Switzerland.
The plaintiffs appealed to the US Court of Appeals for the Fourth Circuit, which affirmed the district court’s decision in March. The appellate court concluded that when consumers in the United States request gruyère, they typically mean a category of cheese, not cheese produced in the Gruyère region. As the court explained, purchasers “regularly mean a type of cheese, and not a cheese that was produced in the Gruyère region of Switzerland and France.”
Gruyère and Measuring Consumer Perception
Surveys of consumer perception are central to trademark and certification mark disputes. Courts found that when United States consumers encounter gruyere in grilled cheese sandwiches, on charcuterie boards, or atop French onion soup, they did not associate the product with a particular geographic region or traditional production methods.
While the trial court did not rely on consumer survey evidence, the issue was raised on appeal, and courts frequently consider such evidence in disputes over genericness. The Fourth Circuit observed that survey evidence has become “almost de rigueur in litigation over genericness,” quoting Convenient Food Mart, Inc. v. 6-Twelve Convenient Mart, Inc.
Properly designed consumer perception surveys can assess whether consumers believe a product name refers to a specific geographic origin, a particular production method, or a general product category. Such surveys are commonly used in trademark, certification mark, and false advertising disputes.
The Litigation Surveys and Consumer Sciences experts at IMS Legal Strategies design and execute consumer surveys to evaluate genericness, likelihood of confusion, and other issues central to trademark and advertising law. Our experts have supported matters before the TTAB, federal courts, and regulatory bodies by providing reliable, defensible survey evidence. Contact IMS Legal Strategies if you require consumer survey research.
