Nicole Saharsky is featured in this article.
"The FDA standard of identity for ‘Gruyere cheese,’ which does not link the production of the cheese to any geographic region, is evidence that the term ‘Gruyere’ is generic," Chief Judge Roger Gregory wrote.
Comparing a trademark dispute over the generic nature of the word “Gruyere” to a “fine cheese … matured … ripe” and ready for review, a U.S. circuit judge sided with American cheese makers against claims filed by competing European manufacturers Friday morning.
“The consortiums 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,” wrote Senior Judge Roger Gregory of the U.S. Court of Appeals of the Fourth Circuit for the unanimous three-member panel.
Fross Zelnick Lehrman & Zissu attorney Richard Lehv, who represented the European cheesemakers Interprofession du Gruyère and Syndicat Interprofessionnel du Gruyère before the Richmond, Virginia-based appeals panel, had argued in December that history showed French and Swiss cheese makers were the only real source of Gruyère. But Mayer Brown attorney Nicole Saharsky, who argued on behalf of the U.S. Dairy Export Council, said the evidence showing the name had lost its originating mark was “voluminous.”
U.S. District Judge Thomas Selby Ellis of the Eastern District of Virginia sided with the dairy council in late 2021, dismissing the claims after finding an “overwhelming” amount of evidence proving the generic nature of the word.
Gregory, joined by Circuit Judges Stephanie Thacker and Allison Jones Rushing, agreed, finding the FDA standard of identity, USDA import data and other U.S. production information, and common usage of the term all played into the American producer’s claims.
“We follow that approach and conclude that the FDA standard of identity for ‘Gruyere cheese,’ which does not link the production of the cheese to any geographic region, is evidence that the term ‘Gruyere’ is generic,” he wrote.
Reprinted with permission from the March 3, 2023 edition of The National Law Journal © 2023 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.