Earlier this month, the Trademark Trial & Appeal Board (TTAB) issued a  precedential ruling that the term “Gruyere” for cheese is generic.  In 2015, Swiss and French industry groups sought a certification mark for the term, arguing that the mark certifies that the cheese is from the Gruyere region of Switzerland and France.  The U.S. Dairy Export Council and other American groups filed notices of opposition, arguing that Gruyere is a generic term.  In its ruling, although noting that the term Gruyere derives from a geographic region in Switzerland, has been made in France for hundreds of years, and had been given a protected designation recognized by the European Union, the Board sided against the Swiss and French industry groups.

The Board applied the following genericness test: (1) what is the genus of goods or services at issue, and (2) does the relevant public understand the designation primarily to refer to that genus of goods or services?  Utilizing that test, and relying on various pieces of evidence, the Board determined that the genus of goods is cheese and that consumers of cheese understand Gruyere to refer to a category of cheese that is not limited to a specific geographic region but rather can come from anywhere.  As such, the Board found the term generic and ineligible for protection as a trademark.

The Board’s ruling means that Swiss and French industry groups will not be able to police use of the term Gruyere by American companies, absent a reversal on appeal or different outcome in district court. It could also have future implications on other similar food or beverage names involving a geographic region where the name has become genericized.

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