Interprofession du Gruyere v. U.S. Dairy Export Council, 61 F.4th 407

Gruyère originated in La Gruyère (Switzerland); Switzerland and France protect “Gruyère” via PDO/PGI with strict geographic and production rules, but the U.S. has no geographic restriction.
FDA has a standard of identity for “Gruyere cheese” (21 C.F.R. § 133.149) setting production/ingredient attributes but no geographic limitation; many U.S. and non‑Swiss/French cheeses have been labeled and sold as “gruyere.”
IDG and SIG (the Consortiums) applied to register “GRUYERE” as a certification mark to limit use to cheese from the Gruyère region; USPTO previously registered a stylized LE GRUYÈRE SWITZERLAND certification mark but refused plain-word registration as generic.
Opposers (U.S. Dairy Export Council, Atalanta, Intercibus) challenged the Consortiums’ GRUYERE certification application at the TTAB; TTAB found the term generic.
District court granted summary judgment for Opposers, holding the term generic based on (1) the FDA standard of identity, (2) pervasive domestic and imported non‑Swiss/French gruyere labeling/sales, and (3) common usage in media and trade; Fourth Circuit affirms.

Issue	Consortiums' Argument	Opposers' Argument	Held
Whether "GRUYERE" is generic for cheese	"GRUYERE" denotes geographic origin and can function as a certification mark limited to Gruyère region	U.S. consumers primarily understand "GRUYERE" as a type of cheese (a genus), not origin	Term is generic as a matter of law; certification mark unregistrable
Relevance of FDA standard of identity	FDA rules are not dispositive; FDA cannot permit/forbid trademark rights; standards don’t prevent certification marks	FDA standard (no geographic limit) is strong evidence consumers expect "gruyere" to describe a type of cheese	FDA standard is probative evidence of genericness and supports the ruling
Use of import/domestic labeling and sales data	USDA tariff codes and sales records don’t reliably show products were sold labeled "gruyere"; evidence is incomplete	Substantial undisputed evidence shows millions of pounds of domestic and non‑Swiss/French cheeses were sold as "gruyere" in U.S.	Even accepting limited inferences against Opposers, record shows pervasive non‑regional use supporting genericness
Necessity of consumer surveys at summary judgment	Absence of surveys requires denial of summary judgment; surveys are essential to prove consumer perception	Surveys are not required; consumer perception can be shown via dictionaries, trade press, labels, sales data	Surveys not required; non‑survey evidence sufficed to conclude genericness

Booking.com B. V., 140 S. Ct. 2298 (2020) (primary significance/genericness test for marks)
H. Marvin Ginn Corp. v. Int’l Assn. of Fire Chiefs, Inc., 782 F.2d 987 (Fed. Cir. 1986) (test: primary significance of the term to the relevant public)
In re Steelbuilding.com, 415 F.3d 1293 (Fed. Cir. 2005) (definition of generic term identifying type, not source)
Institut Nat. Des Appellations D’Origine v. Vintners Int’l Co., 958 F.2d 1574 (Fed. Cir. 1992) (agency regulations can be probative of genericness)
Cordua Rests., Inc., 823 F.3d 594 (Fed. Cir. 2016) (term may be generic for part of the genus)
Nemphos v. Nestle Waters N. Am., Inc., 775 F.3d 616 (4th Cir. 2015) (agency standards affect consumer expectations)
Colt Def. LLC v. Bushmaster Firearms, Inc., 486 F.3d 701 (1st Cir. 2007) (competitor/public usage evidence probative of genericness)
Royal Crown Co. v. The Coca‑Cola Co., 892 F.3d 1358 (Fed. Cir. 2018) (surveys not required; other competent evidence may prove public understanding)
Retail Servs., Inc. v. Freebies Publ’g, 364 F.3d 535 (4th Cir. 2004) (summary judgment appropriate when evidence is one‑sided on genericness)
POM Wonderful LLC v. Coca‑Cola Co., 573 U.S. 102 (2014) (FDCA/FDA compliance does not preclude Lanham Act claims)