Il termine GRUYERE è generico e non registrabile comer marchio: così l’appello del 4 circuito USA

Sarah Burstein in Mastodon dà notizia di e link a questa interessante sentenza 03.03.3023, No. 22-1041, dell’appello del 4 circuito, INTERPROFESSION DU GRUYERE; SYNDICAT INTERPROFESSIONNEL DU GRUYERE v. U. S. DAIRY EXPORT COUNCIL; ATALANTA CORPORATION; INTERCIBUS, INC..

Il comando è quello secondo cui il marchio denominativo GRUYERE non è registrabile (come marchio di certificazion: che è quelo concesso “to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person’s goods or services or that the work or labor on the goods or services was performed by members of a union or other organization.“, 15 US Code § 1127 ) perchè divenuto denominazione generica.

Sentenza dettagliata anche nel fatto, come raccomandabilmente si usa in common law.

<<All told, the record reflects sales in 2020 of at least pounds of gruyerelabeled cheese that was produced outside of the Gruyère region of Switzerland and France.

In In Re Cooperativa Produttori Latte E Fontina Valle D’acosta, the TTAB concluded that the term fontina “merely describes or is the generic name for a type of cheese,” in part because “the record reveal[ed] that there is a domestic fontina cheese.” 230 U.S.P.Q. 131 (T.T.A.B. Mar. 19, 1986). Here too, the evidence demonstrates the existence of a domestic gruyere cheese. And even more persuasively, the record establishes that, at least in 2020, non-Swiss and non-French cheese made up a substantial portion of the cheese sold as gruyere in the United States market. “This evidence is probative of generic use because the more members of the public see a term used by competitors in the field, the less likely they will be to identify the term with one particular producer” (or, in this case, one geographic region). Colt Def. LLC v. Bushmaster Firearms, Inc., 486 F.3d 701, 706 (1st Cir. 2007) (cleaned up). And significantly, Wegmans—which sells both domestic and Swiss-produced gruyere cheese—sold more domestic gruyere-labeled cheese than Swiss gruyere-labeled cheese each year between 2016 and 2021 (except 2020). This evidence strongly indicates that “to the American purchaser, [GRUYERE] primarily signifies a type of cheese (much like brie, swiss, parmesan or mozzarella) regardless of regional origin, rather than a mark of certification.” Id.>>

Per cui:

<< Having addressed the Consortiums’ challenges to the district court’s opinion, we conclude that, while the district court made certain improper inferences in its analysis, the record nevertheless contains evidence that is “so one-sided” that there is no genuine issue as to any material fact and Opposers must prevail as a matter of law. Retail Servs., Inc., 364 F.3d at 542. The FDA standard of identity, the pervasive sales of non-Swiss and nonFrench cheese labeled as gruyere in the United States, and the common usage of gruyere “establish[] 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. Glover, 74 F.3d at 59>>.