The US Patent & Trade Office has rejected Gruyere as a protected name, even though it may have AOC designation. They have ruled that the name Gruyere is in common use and cannot be protected.
Here's the story (http://www.cheesereporter.com/story2.htm)
In its rejection notice, PTO says that "... the evidence of record clearly shows that the U.S consumer views Gruyere as a style of cheese that can be made anywhere and is not just a cheese from Gruyere, Switzerland."
The USPTO rejected the use of Gruyere entirely even though the registrant was attempting to protect "Le Gruyere" and "Le Gruyere Switzerland AOC". This may be the start of a trend in the USA to disallow formal name protection for "designated" European cheeses that have "class" names that have been in use for a long time.
This has lots of implications for small commercial cheesemakers like myself. Parmigiano-Reggiano certainly comes to mind. After all it's just a naming variation on the unprotected Parmesan. Someone on the Forum in NY had an issue recently regarding the use of the name Cheddar. Does anyone know how to find a list of cheese names that ARE protected in the USA?
Protected meaning trademarked? We don't have an AOC system (yet).
We don't have an AOC system, but names can be trademarked, but the PTO rejected their application for trademark protection. The PTO said that the name Grueyer was in common usage and could not be trademarked, even when put in the context of "Le Gruyere" for example. So that would exclude "Swiss Gruyere" or "Alpine Gruyere" or whatever clever variation that anyone could come up with. The name Gruyere has been excluded from all trademark protection. That means that any protected status that Gruyere may have in the EU will not be recognized in the USA.
If that same logic applies, then Parmigiano-Reggiano cannot be trademarked here either. Parmesan or the Italian spelling Parmigiano has obviously been made in many locations all over the world, so just like Gruyere, the PTO should consider the "Reggiano" as a variation on a name with very common usage.
One of the factors in this particular case was the way that cheeses are recognized at competitions and events. At the World Cheese Championships, for example, they had entries for Gruyere from several different countries. It seems that the bottom line is that if a cheese is being made in this country or imported from countries other that the alleged place of "origin", then the PTO is going to reject trademark status.
I feel this has the potential to be a really big deal. For example, I do a Fontina, (an EU protected cheese) but I call it Fontana (named after a beautiful mountain lake in North Carolina). But all of my customers call it Fontina anyway. If there is no current trademark protection in the USA, then I can legally use Fontina and establish a pre-existing claim.
Quote
If that same logic applies, then Parmigiano-Reggiano cannot be trademarked here either.
mmm... I see it differently. Gruyere cheese has been made in the US for many years. It's been called that, gruyere. In the US, when parmigiano styles were made, they were never called parmigiano. They were called parmesan. And that became a category of cheese. Had the early makers made parmigiano and called it parmigiano instead of parmesan, then the same logic would apply. We have no cases in the US of makers making parmigiano.
So it's not a variation of a name. le gruyere is gruyere with the article, which is a variation. parmesan and parmigiano are totally different words.
Quotethe way that cheeses are recognized at competitions and events.
Right, as a way to demonstrate common use. Cannot trademark something in common use after its entered vernacular use.
QuoteIt seems that the bottom line is that if a cheese is being made in this country or imported from countries other that the alleged place of "origin", then the PTO is going to reject trademark status.
IMHO, more complex than that.
QuoteIf there is no current trademark protection in the USA, then I can legally use Fontina and establish a pre-existing claim.
Generally, agree here, but it's a little tricky to start using it. If it's one or two people, wouldn't work. If it becomes commonplace before filing, then it's harder to obtain approval of the petition.
So it's not a variation of a name. le gruyere is gruyere with the article, which is a variation. parmesan and parmigiano are totally different words.
BUT... if Parmigiano is not currently trademarked, then cheesemakers can legally use that name in the USA and establish a precedent. I don't see that happening because Parmesan is in such common use.
IMHO, more complex than that.
It was not just the common name that influenced the rejection. They looked to see if any domestic companies are making Gruyere - there are. And they looked at import records. Since Gruyere came from countries other than Switzerland, they ruled that there was no geographical significance. Even though they are extremely common phrases, Paris Hilton was able to secure trademark protection for both "It's Hot" and "It's Huge". So this seems like a well thought out position that the PTO took regarding Gruyere.
If it's one or two people, wouldn't work. If it becomes commonplace before filing, then it's harder to obtain approval of the petition.
All it takes is one established case to block trademark protection. In 1971, when McDonalds invaded Australia, they found that there was already a local hamburger place with the same name. Even though he did not have trademark protection, he had an established name. So, that one little guy kept an international giant from receiving trademark protection in Australia. McDonalds of course gave him millions of dollars to buy his single restaurant and the rights to the name.
Interesting discussion... I'll see what my attorney friend says. You make some really good points, thanks for posting the article :)
Quote from: Sailor Con Queso on May 17, 2012, 10:12:31 PM
All it takes is one established case to block trademark protection. In 1971, when McDonalds invaded Australia, they found that there was already a local hamburger place with the same name. Even though he did not have trademark protection, he had an established name. So, that one little guy kept an international giant from receiving trademark protection in Australia. McDonalds of course gave him millions of dollars to buy his single restaurant and the rights to the name.
A small aside: in Australia Burger King is called Hungry Jacks for what I understand to be a similar reason. Maybe BK didn't have as deep pockets as Macas!
To me the most interesting point of this is that the PTO is not simply taking EU designation claims at face value. Now if you want to export cheese back into the EU, that's a different story, because cheese going back into the EU could be protected.
Interesting point about Burger King. I did not know that. I do international marketing for some of my clients. That's how I knew about McDonalds. It never went to court so the McGiant was able to keep the whole thing pretty quiet. So all we have to do is trademark the name McDonalds in every country where they don't have a presence. When they eventually decide to move in, we all become McMillionaires. :o
Interesting discussion! What about "feta" in the US? Below a quote from Wiki about feta in the European Union:
Since 2002, feta has been a protected designation of origin product in the European Union. According to the relevant EU legislation, only those cheeses produced in a traditional way in some areas of Greece (mainland and the island of Lesbos), and made from sheep milk, or from a mixture of sheep and goats' milk (up to 30%) of the same area, may bear the name "feta".[1] However, similar white brined cheeses (often called 'white cheese' in various languages) are found in the eastern Mediterranean and around the Black Sea. Similar brined white cheeses produced outside the EU are often made partly or wholly of cow's milk, and they are sometimes called 'feta'.
Funny thing however is that a couple of years ago, the most feta you found in Greece in the restaurants originated from....Holland and Denmark and was made from cow's milk.
Feta is a classic example. There are hundreds of small companies making Feta in the USA. We have 2 from local creameries just at our local farmer's market. One is from goat's milk and one from cow. And since it is also obviously made in countries other than Greece, I can't see how it could be trademarked in the USA. The fact that it's made from cow, sheep, and goats milks or combinations would make it even more difficult to give it formal protection.
Here in England feta is AOC protected and so people making a feta-type cheese typically call it that: feta-type, or they come up with a clever variation on the word. I suspect there are a few cheese makers taking the risk to call their product feta when they shouldn't officially but generally pretty uncommon. I've found it interesting to see feta-type cheese called just feta in the shops in Canada when clearly made by Canadian companies and there seems no regard for its AOC status.
That's why there could be no protection in the USA. How can Feta be AOC protected in England AND Greece? Especially if you concede that Feta is of Greek origin. What happens when you import Greek Feta into the UK? Is that even possible? How do other EU countries like France for example handle a cheese that has designated protection in 2 different EU countries? Duplicate protection within the EU doesn't even make sense.
Quote from: Sailor Con Queso on May 18, 2012, 04:18:01 PM
How can Feta be AOC protected in England AND Greece?
Well, I guess because both countries (still) belong to the European Community. Legally it's not possible to call something feta unless it complies to the rules of origin. So you can import it into a European country ("free" traffic of goods inside the EC) and still call it feta because of its origin.
The designated protection is not in 2 different countries buton a higher level, the EC. It's like French wine, when it's label states that it is e.g. an Appellation Beaujolais Controllee, then it is checked that the origin is from Beaujolais and that the quality confirms to a certain standard.
When a label states that something it is Feta, the origin is from (parts) of Greece and it is goat, sheep or a mix. You can not call your Stilton in Europe a Stilton because it is an AOC, but you can call anything you make a Cheddar (except for "'West Country Farmhouse Cheddar") because itr is not an AOC.
In Finland ( or EU ) you can't sell it name feta, if it not made in Greece.
And there is lot of feta type cheese import Eu, what is named salad cheese.
Hande
Having this system in Europe I hadn't really thought about it, just figured it was an international agreement - so was surprised to see Canadian cheese producers selling feta, for example.. 'why would they be allowed to do that, when it's not really feta?' I live in Gloucestershire in England (am Canadian) and interestingly the Gloucestershire Old Spot breed of pig has been given protected status - which seems a bit strange in so far that the breed has been exported elsewhere, so then what do you call it elsewhere (can't be altered with a slight change in recipe to be a slightly modified GOS!)!? I'm sure there's an answer to that but it does seem a bit peculiar.
http://www.telegraph.co.uk/foodanddrink/foodanddrinknews/7836372/Gloucestershire-Old-Spot-pork-given-protected-status.html (http://www.telegraph.co.uk/foodanddrink/foodanddrinknews/7836372/Gloucestershire-Old-Spot-pork-given-protected-status.html)
Much more recent, and on the cheese front, is the controversy over halloumi in Cyprus. http://gourmetorigins.com/blog/cyprus-settles-the-halloumi-dispute/ (http://gourmetorigins.com/blog/cyprus-settles-the-halloumi-dispute/)
If you look back, historically many English cheeses were made with sheep's milk. As time went on and cows became the dominant source of milk, almost all of those cheeses converted over to cow's milk. That's sort of what was happening with the Halloumi controversy. The i9sland of Cyprus just doesn't have enough sheep or goats. So where do you draw the line when protecting an authentic, historically accurate cheese. Stilton is a good example. It was made for many years strictly with raw milk. Because of irrational health concerns a bunch of bureaucrats decided that it should now be made with pasteurized milk. There is only one maker in England producing "authentic" Stilton with raw milk and he is not even allowed to use the name. So he calls it Stichelton.