A federal judge says yes, siding with U.S. cheese producers who say gruyère can be produced anywhere, not just in Switzerland and France.
In Europe, the mild, smooth and nutty cheese called gruyère must have a slightly damp texture, with average spring and low crumble. It must be in the shape of a wheel, weighing between 55 and 88 pounds. Fruity notes must dominate.
Perhaps most importantly, according to Swiss guidelines, gruyère must be made in the region around Gruyères, Switzerland, which has produced the cheese since the 12th century.
In the United States, however, gruyère can be made anywhere, according to a federal court ruling that was made public last week. It was the latest development in a long-running legal tangle between American cheese producers and producers in Switzerland and France over what makes gruyère gruyère.
In the ruling last month in U.S. District Court for the Eastern District of Virginia, Judge T.S. Ellis III wrote, “Although the term gruyère may once have been understood to indicate an area of cheese production, the factual record makes it abundantly clear that the term gruyère has now, over time, become generic to cheese purchasers in the United States.” Under U.S. law, trademarks cannot be given to generic terms.
Gruyère producers in Switzerland and France, however, say that their cheese is anything but generic and that they will appeal the decision.
“We have a big problem,” said Philippe Bardet, the director of Interprofession du Gruyère, which represents gruyère producers in Switzerland. “With this decision, you can make a little cheese, a big cheese, a hard cheese, a processed cheese — and you can give the name ‘gruyère’ for all types of cheese.”
Mr. Bardet said he saw this firsthand during a prepandemic trip to New York, when he sampled cheese from Wisconsin that was labeled gruyère. “It’s another cheese; it’s not gruyère,” he said. “I can’t say it’s less quality, but you have another taste.” He added: “For me, they have less taste.”
A law firm representing Interprofession du Gruyère sent more than two dozen letters of complaint to grocery stores, delis and restaurants that sold gruyère from outside of Switzerland and France. One letter to Zabar’s, an upscale grocery store on Manhattan’s Upper West Side, accused the business of false advertising in labeling a cheese from Germany “gruyère.”
“There is no German gruyère,” a lawyer for the association of cheese producers wrote, according to a copy of the 2017 letter. The lawyer suggested that the label be changed to “German Alpine-style” cheese.
On Tuesday, Jaime Castaneda, the executive director of the Consortium for Common Food Names and the executive vice president of strategy for the National Milk Producers Federation, said he was “ecstatic” about the court ruling.
“For us this decision is not just about gruyère,” he said. “This goes to the bigger fight that we have with Europe in which they are trying to confiscate all these names,” he said, adding that the European Union adopts rules that benefit its own producers at the expense of producers elsewhere.
In Europe, countries are staunchly protective over their culinary heritage. The European Union says it aims to protect the names of specific products to promote the unique characteristics that are linked to their geographical origin. Among cheeses, Roquefort must be from Roquefort-sur-Soulzon, France; Parmesan must come from the Italian regions around the cities of Parma and Reggio; and feta must be from certain regions of Greece.
But the same rules do not apply in the United States, where cheeses labeled feta, Munster or Parmesan can be produced anywhere. (Roquefort, however, must be produced in France.) And the European Union cannot prevent European countries other than Switzerland and France from selling cheese called gruyère in the United States. In fact, from 2010 to 2020, the United States imported more cheese called gruyère from the Netherlands and Germany than from Switzerland and France, according to data from the U.S. Department of Agriculture. For at least 30 years, American cheese producers have applied the label “gruyère” to cheese from countries including Denmark, Egypt and Tunisia.
A spokesman for Switzerland’s agriculture department, Jonathan Fisch, said in a statement that the Swiss government was disappointed by the court ruling. “Using the term ‘gruyère’ for a cheese produced in the United States threatens the reputation of the original product and its place in the foreign market and can only harm the entire sector,” he said.
Margo A. Bagley, a professor at Emory University School of Law who focuses on patent law and intellectual property, said she agreed with the court’s decision.
“If we want to have a vibrant, competitive marketplace, other producers need to be able to sell products by the common name that consumers recognize,” she said.
Mr. Bardet acknowledged Judge Ellis’s view that some Americans may see gruyère as generic, but insisted that sophisticated cheese consumers knew the difference.
“Perhaps in the middle of one state in the middle of America, perhaps,” he said. “But when you go to New York or to Washington or when you go to a special deli, like Whole Foods, when a consumer goes there, he knows exactly what is a normal gruyère and what is a fake gruyère.”
