Fourth Circuit Affirms ED Va., Which Upheld TTAB Decision: GRUYERE is Generic for Cheese

The U.S. Court of Appeals for the Fourth Circuit has affirmed the decision of the U.S. District Court for the Eastern District of Virginia [TTABlogged here], upholding the ruling of the TTAB [TTABlogged here] that the term GRUYERE is generic for cheese and therefore unregistrable as a certification mark. Interprofession du Gruyère et al. v. U.S. Dairy Export Council et al.,, Appeal No. 22-1041 (4th Cir. March 3, 2023).

The district court found, on Dairy Export Council's motion for summary judgment, that "the undisputed evidence produced by the parties in this case makes clear that the primary significance of the term GRUYERE, as understood by the relevant purchasing public in the United States, is a generic term for a type of cheese and does not refer solely to cheese from a specific geographic region."

The Fourth Circuit ruled that, although the district court made certain improper inferences in its analysis, the evidence was "so one-sided" that there was no genuine issue as to any material fact and that the Dairy Export Council "must prevail as a matter of law." The Court reasoned that "the common usage of gruyere 'establish[es] 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."

The appellate court concluded that “the [appellants] cannot overcome what the record makes clear: cheese consumers in the United States understand ‘GRUYERE’ to refer to a type of cheese, which renders the term generic."

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TTABlogger comment: At least it wasn't another "key aspect" case.

Text Copyright John L. Welch 2023.