U.S. Dairy Export Councilv.Interprofession du Gruyère, Syndicat Interprofessionnel du Gruyère

Trademark Trial and Appeal Board

Aug 5, 2020

91232442 (T.T.A.B. Aug. 5, 2020)

This Opinion is a
Precedent of the TTAB

Hearing: June 27, 2019 Mailed: August 5, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

International Dairy Foods Association
v.
Interprofession du Gruyère and Syndicat
Interprofessionnel du Gruyère
________

U.S. Dairy Export Council
v.
Interprofession du Gruyère and Syndicat
Interprofessionnel du Gruyère
________

Atalanta Corporation
v.
Interprofession du Gruyère and Syndicat
Interprofessionnel du Gruyère
________

Intercibus Inc.
v.
Interprofession du Gruyère and Syndicat
Interprofessionnel du Gruyère
________

Opposition Nos. 91232427, 91232442, 91232446
and 91232448, respectively.1

1 The Board consolidated these opposition proceedings in its order dated February 6, 2017.
4 TTABVUE (Opposition No. 91232427). Citations in this opinion are to the record in
Opposition No. 91232427 (unless otherwise noted) and to the TTABVUE docket entry number
and the electronic page number where the document or testimony appears. Because the
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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_______

Brian G. Gilpin and Zachary R. Willenbrink of Godfrey & Kahn, S.C.
for International Dairy Foods Association, United States Dairy
Export Council, Atalanta Corporation, and Intercibus Incorporated.

Richard Lehv, Susan Upton Douglass and Sean Harb of Fross Zelnick
Lehrman & Zissu, P.C., for Interprofession du Gruyère and
Syndicat Interprofessionnel du Gruyère.
_____

Before Zervas, Greenbaum and Larkin,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
On September 17, 2015, Interprofession du Gruyère (“IDG”), a Swiss registered
association, and Syndicat Interprofessionnel du Gruyère (“SIG”), a French syndicat
interprofessionnel, (collectively, “Applicants”) filed an application for registration of

Board primarily uses TTABVUE in reviewing evidence, the Board prefers that citations to
non-confidential parts of the record include the TTABVUE docket entry number and the
TTABVUE page number. For material or testimony that has been designated confidential
and which does not appear on TTABVUE, the TTABVUE docket entry number where such
material or testimony is located should be included in any citation. See Turdin v. Trilobite,
Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014).
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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the standard character certification mark2 GRUYERE on the Principal Register3 for
“cheese,” based on use in commerce under Section 1(a) of the Trademark Act, 15
U.S.C. § 1051(a), claiming first use at least as early as 1982 and first use in commerce
at least as early as 1985. The application includes the following statements:
The certification mark, as used by persons authorized by
the certifier, certifies that the cheese originates in the
Gruyère region of Switzerland and France.
1). In Switzerland this region includes the cantons of
Fribourg, Vaud, Neuchatel, Jura, and the districts of
Courtelary, La Neuveville, Moutier as well as the
communes of Ferenbalm, Guggisberg, Mühleberg,

2 Section 45 of the Act, 15 U.S.C. § 1127, defines a “certification mark” as:
[A]ny word, name, symbol, or device, or any combination thereof-
(1) used by a person other than its owner, …
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.
Section 4 of the Trademark Act, 15 U.S.C. § 1054, provides:
Subject to the provisions relating to the registration of
trademarks, so far as they are applicable, collective and
certification marks, including indications of regional origin,
shall be registrable under this chapter, in the same manner and
with the same effect as are trademarks, by persons, and nations,
States, municipalities, and the like, exercising legitimate control
over the use of the marks sought to be registered, even though
not possessing an industrial or commercial establishment, and
when registered they shall be entitled to the protection provided
in this chapter in the case of trademarks, except in the case of
certification marks when used so as to represent falsely that the
owner or a user thereof makes or sells the goods or performs the
services on or in connection with which such mark is used.
Applications and procedure under this section shall conform as
nearly as practicable to those prescribed for the registration of
trademarks.
3 Application Serial No. 86759759, filed September 17, 2015.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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Münchenwiler, Rüschegg and Wahlern of the canton of
Bern.
2). In France this region includes the departments of
Doubs, Jura, Haute-Saône, Savoie and Haute-Savoie as
well as the cantons of Amberieu-en-Bugey, Bellegarde-sur-
Valserine, Belley, Brénod, Ceyzériat, Champagne-en-
Valromey, Coligny, Collonges, Ferney-Voltaire, Gex,
Hauteville-Lompnes, Izernore, Lagnieu, Lhuis, Nantua,
Oyonnax-Nord, Poncin, Pont-d’Ain, Saint-Rambert-en-
Bugey, Seyssel, Treffort-Cuisiat, Virieu-le-Grand,
Péronnas, Oyonnax-Sud, Viriat, Oyonnax, Bourg-en-
Bresse in the department of Ain, the cantons of Fontaine-
Française, Saint-Jean-de-Losne, Seurre in the department
of Côte-d’Or, the cantons of Saint-Laurent-du-Pont and
Touvet in the department of Isère, the cantons of
Bourbonne-les-Bains, Bourmont, Clefmont, Fayl-la-Forêt,
Laferté-sur-Amance, Langres, Longeau-Percey, Val-de-
Meuse, Neuilly-l’Evêque, Nogent, Prauthoy, Terre-Natale
in the department of Haute-Marne, the cantons of
Beaurepaire-en-Bresse, Cuiseaux, Pierre-de-Bresse, Saint-
Germain-du-bois in the department of Saône-et-Loire, the
cantons of Bains-les-Bains, Darney, Lamarche,
Monthureux-sur-Saône, Plombières-les-Bains, Xertigny in
the department of Vosges, the cantons of Delle, Fontaine,
Giromagny, Rougemont-le-Château, Valdoie, Châtenois-
les-Forges, Danjoutin, Beaucort, Grandvillars, Offemont,
Belfor in the department of Territoire de Belfort.
IDG has claimed ownership of Registration No. 4398395 (registered
September 10, 2013) for the following certification mark for “cheese”:

Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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The terms SWITZERLAND and AOC are disclaimed, color is not claimed as a feature
of the mark, and the English translation of “LE” in the mark is identified as “THE.”4
The registration also includes the following certification statement:
The certification mark, as used by persons authorized by
the certifier, certifies that the cheese originates in the
Gruyère region of Switzerland including the cantons of
Fribourg, Vaud, Neuchatel, Jura, and the districts of
Courtelary, La Neuveville, Moutier, and the communes of
Ferenbalm, Guggisberg, Mühleberg, Münchenwiler,
Rüschegg and Wahlern of the canton of Bern.
In their Notices of Opposition, International Dairy Foods Association (“IDFA”),
United States Dairy Export Council (“USDEC”), Atalanta Corporation (“Atalanta”),
and Intercibus Incorporated (“Intercibus”) (collectively “Opposers”) allege that
(i) Applicants have failed to exercise legitimate control over the proposed certification
mark and hence it is incapable of functioning as a certification mark under Sections
4 and 45 of the Trademark Act, 15 U.S.C. §§ 1054, 1127; and (ii) GRUYERE is a
generic name for cheese and unregistrable under Section 2(e)(1) of the Trademark
Act, 15 U.S.C. § 1052(e)(1).5
Applicants have denied Opposers’ salient allegations in answers to each of
Opposers’ Notices of Opposition.6 The parties have fully briefed the Oppositions.

4 The mark is described as consisting of “the term ‘LE GRUYÈRE SWITZERLAND’ in a
stylized font. The term ‘SWITZERLAND’ appears within a solid bar directly under ‘LE
GRUYÈRE’. To the right appears a stylized square containing the letters ‘AOC’ and a stylized
Swiss cross.”
5 1 TTABVUE in each Opposition.
6 5 TTABVUE in each Opposition.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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I. The Record
In addition to the pleadings, pursuant to Trademark Rule 2.122(b), 37 CFR
§ 2.122(b) Applicants’ opposed application is automatically of record. The parties have
submitted the following:
a. Stipulation
The record includes a stipulation providing that those documents produced in
response to a party’s discovery requests are authentic and, accordingly, may be
submitted by the producing party at trial by a notice of reliance without the need for
authenticating testimony.7 In addition, the stipulation provides that (i) the receiving
party reserves the right to object, on grounds other than authenticity, to the
admissibility of the documents produced in response to the other ’s discovery requests;
(ii) a party retains the right to contest the authenticity of evidence the other party
seeks to rely on from the other party’s own productions; and (iii) each party retains
the right to object to the admissibility of other evidence relied on by the other party,
regardless of which party produced the evidence. The stipulation is approved. See
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 501.02
(2019).
b. Opposers’ Submissions:
● Declaration of John Umhoefer, Executive Director of
Wisconsin Cheese Makers Association (“WCMA”), together
with Exhibits A and B thereto, submitted as trial testimony

7 Opposers’ Notice of Reliance Exh. 112, 29 TTABVUE 64-66, 40 TTABVUE 61-64. The
parties do not mention this stipulation in their briefs; they followed its provisions when they
submitted their notices of reliance.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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(the Declaration and exhibits comprise WCMA’s response
to Opposers’ subpoena duces tecum) (20 TTABVUE).
● Declaration of Matthias Kunz, Chairman of Emmi Roth
USA, Inc. (“Emmi Roth”), together with Exhibits A-C
thereto, submitted as trial testimony (the Declaration and
exhibits comprise Emmi Roth’s response to Opposers’
subpoena duces tecum) (20-21 TTABVUE).
● Declaration of Shawna Morris, Vice President of Trade
Policy for USDEC, and exhibits. (23-26 TTABVUE).
● Opposers’ Notice of Reliance (28-30 TTABVUE), and
Corrected Notice of Reliance (40‐41 TTABVUE),8
submitting a copy of 21 C.F.R. § 133.149, cancelled
registrations containing the term “gruyere,”9 papers from
prior trademark applications containing “gruyere,” various
publications, Applicants’ discovery responses, and a
duplicate copy of the Umhoefer and Kunz Declarations and
most of their exhibits.
● Trial deposition testimony of Thomas Gellert, an officer
of Atalanta, and exhibits. (31 TTABVUE).
● Trial deposition testimony of Fermo Jaeckle, an officer of
Intercibus, and exhibits. (32 TTABVUE).
c. Applicants’ Submissions:
● Applicants’ Notice of Reliance submitting pages from
“The Oxford Companion to Cheese” (Oxford Univ. Press
2016) and various webpage printouts. (35 TTABVUE).

8 Opposers submitted the Corrected Notice of Reliance because the Notice of Reliance (28-30
TTABVUE) included confidential documents produced by Applicants and were not submitted
under seal. Opposers requested that 29 and 30 TTABVUE be sealed, and resubmitted the
Notice of Reliance as the Corrected Notice of Reliance (40 and 41 TTABVUE). The Board has
sealed 29 and 30 TTABVUE from public viewing.
9 We use GRUYERE in all capital letters with no accent on the first letter “e” to identify the
term sought to be registered by Applicants and GRUYÈRE in all capital letters with an accent
on the first letter “e” to identify the term Applicants use for a cheese made according to
production standards including specific places of production, namely, western Switzerland
and east-central France, as well as a term included in a registered certification mark of
regional origin for such cheese. See Registration No. 4398395 mentioned above.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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● The declaration of Marie Guittard, Director of the French
National Institute of Origin and Quality, and exhibits. (36
TTABVUE).
● The declaration of Romain Sandoz, President of SIG, and
exhibits. (36 TTABVUE).
● The declaration of Prof. Dr. Bernard Lehmann, Director
of the Swiss Federal Office for Agriculture, and exhibits.
(36 TTABVUE).
● The declaration of Philippe Bardet, IDG’s Director, and
exhibits. (37 and 38 TTABVUE).
d. Rebuttal submissions by Opposers:
● Opposers’ Second Notice of Reliance submitting webpage
printouts. (39 TTABVUE).
e. English Translation of Agreement
Opposers submitted a copy of an agreement in French titled “Gruyere AOC États-
Unis/Protocole d’accord Emmi-IPG” dated May 10, 2012 between Emmi AG and IDG
with their Notice of Reliance10 (28-30 TTABVUE) and their Corrected Notice of
Reliance (40-41 TTABVUE). Both submissions are accompanied by a statement that
an English translation is also provided, but Opposers did not file the English
translation with their Notices of Reliance. Opposers submitted a copy of the
agreement with their main brief and provided an English translation along with a
signed certificate from the individual who made the translation. (42 TTABVUE 39-
40). Because Applicants have raised many objections (discussed next) to Opposers’
evidence but have not objected to the English translation, we find that Applicants

10 Opposers’ Notice of Reliance Exh. 146, 28 TTABVUE 12; Opposers’ Corrected Notice of
Reliance Exh. 146, 40 TTABVUE 277.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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have consented to the admission of the translation into the record and we have
considered the translation.
II. Evidentiary Issues
a. Applicants’ Objections
Applicants raised over 150 individual evidentiary objections in a bare bones
fashion with little or no argument supporting each objection.11 As discussed below,
many of the objections are late or without merit.
i. Lack of Foundation
Applicants objected for the first time in a “Statement of Objections” filed with their
main brief to the Morris, Kunz and Umhoefer Declarations12 on the basis of lack of
foundation. “As a general rule, objections that are curable must be seasonably raised,
or they will be deemed waived.” Nahshin v. Prod. Source Int’l, LLC, 107 USPQ2d
1257, 1259 (TTAB 2013). See also TBMP § 707.04 (“[O]bjections to … testimony, on
substantive grounds, such as that the proffered evidence constitutes hearsay or
improper rebuttal, or is incompetent, irrelevant, or immaterial, generally are not
waived for failure to raise them promptly, unless the ground for objection is one which

11 48 TTABVUE.
12 As noted above, Opposers submitted the Kunz and Umhoefer Declarations as trial
testimony. (20-22 TTABVUE). The Declarations are dated prior to the date trial commenced.
Although Applicants raised numerous objections to Opposers’ evidence, Applicants never
objected to the submission of the Kunz and Umhoefer Declarations as untimely. In fact, they
treated the Declarations as having been properly submitted by not objecting to the fact that
they were signed prior to the testimony period and by raising substantive objections against
them. In view thereof, we consider them to have been properly submitted.
Opposers re-submitted the two Declarations and exhibits with their Notice of Reliance and
amended Notice of Reliance — their re-submissions with the Notices of Reliance do not
require us to consider them as something other than trial testimony.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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could have been cured if raised promptly;” and “[a]s with testimony depositions,
objections to the competency of a witness or to the competency, relevancy, or
materiality of affidavit or declaration testimony must be raised at the time specified
in Rule 32(d)(3)(A) of the Federal Rules of Civil Procedure.”). In Moke America LLC
v. Moke USA, LLC, 2020 USPQ2d 10400, at *5 (TTAB 2020), the Board explained
that “[a]n objection to foundation raised for the first time in a trial brief is untimely
because the party offering the testimony (whether by deposition, affidavit or
declaration) does not have the opportunity to cure the alleged defect.” Thus,
Applicants’ lack of foundation objections to the Morris, Kunz and Umhoefer
Declarations and exhibits are late and Applicants have waived these objections.
ii. Hearsay – General
Applicants raised numerous hearsay objections for the first time in their main
brief; these objections are timely. See TBMP § 707.04, quoted above; Anthony’s Pizza
& Pasta Int’l v. Anthony’s Pizza Holding Co., 95 USPQ2d 1271, 1273 n.4 (TTAB 2009)
(“plaintiff’s hearsay objection to Ms. Delegal’s testimony is not waived”), aff’d, 415 F.
App’x 222 (Fed. Cir. 2010).
Applicants’ hearsay objections to evidence which concerns public exposure to the
term “gruyere” on the issue of genericness are baseless because we do not consider
the evidence for the truth of any assertion made therein but only for public exposure
to the term “gruyere” used in a generic (or non-generic) manner.13 See Harry Winston,
Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1428 (TTAB 2014) (“such

13 This particularly applies to the webpage evidence in the record. See for example Opposers’
Notice of Reliance Exh. 83, 28 TTABVUE 272-459.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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materials are frequently competent to show, on their face, matters relevant to
trademark claims (such as public perception), regardless of whether the statements
are true or false. Accordingly, they will not be excluded outright, but considered for
what they show on their face.”); Tao Licensing, LLC v. Bender Consulting Ltd., 125
USPQ2d 1043, 1047 (TTAB 2017); Safer v. OMS Invs., Inc., 94 USPQ2d 1031, 1039
(TTAB 2010). Such objections are overruled.14
iii. Kunz Declaration and Exhibit C
Applicants objected to Mr. Kunz’s testimony and Exhibit C on the basis of a lack
of personal knowledge and hearsay.15
As background, Opposers served a subpoena duces tecum pursuant to Fed. R. Civ.
P. 45 on Emmi Roth requesting documents and testimony on certain topics.
Document Request No. 4, as amended, sought a document “which may be a table,
chart, or other summary of information” evidencing annual sales in the United States
by weight or dollar amount of cheese labeled “gruyere” that was not produced in
Switzerland or France. Emmi Roth responded through Mr. Kunz’s Declaration and
Exhibit C thereto. Exhibit C is a chart labeled “Sales (in Pounds) of Domestically-
Produced Roth-Branded Gruyere, 2012-2016” showing (i) sales of “Domestic Roth

14 It is worth noting, however, that Mr. Umhoefer’s representation that the documents
submitted with his declaration are “true and correct business records” and “were obtained in
a thorough search of WCMA’s business records” under oath does not satisfy the requirements
of Fed. R Evid. 803(6) pertaining to the business record exception to the hearsay rule, which
requires affirmation that the record be of a regularly conducted activity. Mr. Umhoefer has
not addressed these required conditions in his Declaration.
15 48 TTABVUE 24-25.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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branded Gruyere;” and (ii) sales of “Domestic Private-Label branded Gruyere.”16 Mr.
Kunz states that the chart “shows Emmi Roth’s annual sales in the United States of
cheese produced in the United States and labeled as Gruyere (both Roth branded and
sold under third party private label brands), by weight for a time period of 2012-
2016.”17
Fed. R. Evid. 602 provides:
A witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness
has personal knowledge of the matter. Evidence to prove
personal knowledge may consist of the witness’s own
testimony.
As evidence of his personal knowledge of the contents of Exhibit C, Mr. Kunz
stated that he is Chairman of Emmi Roth and that he received the subpoena from
Opposers; that he confirmed that its figures are based upon a review of Emmi Roth’s
business records; and that Exhibit C “accurately reflects those business records.18 In
addition, IDG identified Mr. Kunz as a person “responsible for [the] U.S. market” and
“responsible for the sale of cheese [in the United States] by [“Emmi”] under the
designation gruyere.”19 Applicants have not directly challenged the accuracy of the
figures provided in Exhibit C or Mr. Kunz’s statements.20 We therefore find that Mr.

16 Kunz Decl. Exh. C, 22 TTABVUE 27.
17 Id. at ¶ 5, 21 TTABVUE 6.
18 Id.
19 IDG’s response to Opposer’s Interrog. No. 2, Opposer’s Notice of Reliance Exh. 109, 40
TTABVUE 21 - 22.
20 Mr. Kunz is an officer of a U.S. subsidiary of Emmi AG, one of IDG’s member companies.
He also signed the “Gruyere AOC États-Unis/Protocole d’accord Emmi-IPG” mentioned above
on behalf of Emmi AG. Opposers’ Notice of Reliance Exh. 146, 28 TTABVUE 12; Opposers’
Corrected Notice of Reliance Exh. 146, 40 TTABVUE 277.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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Kunz’s statements in his Declaration satisfy the personal knowledge requirement of
Rule 602, and overrule Applicants’ objection to the Kunz Declaration and Exhibit C
on the basis of no personal knowledge and that his testimony and the contents of
Exhibit C are hearsay.
Applicants also asserted a relevance objection to Mr. Kunz’s Declaration and
Exhibit C. The relevance objection is overruled because the chart and testimony
pertain to the amounts of non-Swiss and non-French cheese referred to as “gruyere”
produced in the United States which is connected to the question of genericness.
iv. Umhoefer Declaration
Applicants’ objection to the Umhoefer Declaration on the basis of no personal
knowledge is also overruled. Mr. Umhoefer, the Executive Director of the WCMA,
testified that he “coordinated with WCMA employees to obtain copies of the
documents requested in the subpoena through a search of WCMA’s business
records.”21 This is sufficient to establish that Mr. Umhoefer has personal knowledge
of the origin of the documents produced by WCMA. Because we do not rely on the
truth of any fact asserted in the documents, to the extent that Applicants object to
our consideration of the Declaration and exhibits for the truth of any matter asserted,
Applicants’ objection is moot. See Harry Winston, 111 USPQ2d at 1428.
v. Morris Declaration
Turning to Applicants’ objection to Ms. Morris’ Declaration and the 43 exhibits
thereto on the basis of no personal knowledge, Applicants state:

21 Umhoefer Decl. ¶3, 29 TTABVUE 287-88, 40 TTABVUE 281-82.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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Ms. Morris states that these exhibits were contained in
Opposers’ files and produced to Applicants. … Because
none of the exhibits were authored by Ms. Morris herself,
and she has not shown that she has personal knowledge of
the facts in those exhibits, they are barred by a number of
evidentiary rules including Federal Rules of Evidence 603,
901, and 802.
Pursuant to Federal Rule of Evidence 603, “[a] witness may
testify to a matter only if evidence is introduced sufficient
to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal
knowledge may consist of the witness’s own testimony.”
Fed. R. Evid. 603. Ms. Morris does not testify that she has
personal knowledge of any of the information contained in
the exhibits.22
Ms. Morris merely states in her Declaration that she understood that counsel for
USDEC and IDFA produced the documents to Opposers, and even identifies the
documents’ Bates stamp numbers.23 This is information that Applicants can verify
directly, and Applicants have not indicated that the documents were not produced to
them as Ms. Morris states in her Declaration. Further, as detailed below, we do not
rely on the exhibits for the truth of any assertion made therein. Applicants’ objection
is therefore overruled.
Next, Applicants raised hearsay objections to the following exhibits submitted
with Ms. Morris’ Declaration:
(i) a list titled “WMMB Store Audits Where Boar’s Head
Brand Gruyere Was Found,” and stating “Source: Custom
Database complied by regional staff of the Wisconsin Milk
Marketing Board” and “reflect[ing] results from audits
conducted between 7/20/15 and 9/1/15; Boar’s Head

22 Applicants’ Statement of Objections to Opposers’ Evidence at p. 3, 48 TTABVUE 4.
23 Morris Decl. ¶ 5, 23 TTABVUE 6.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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gruyere was found during 108 audits conducted across 31
states”;24
(ii) a list titled “Restaurant Operators That Mention
Gruyere on the Menu,” and stating “Source: Technomic
MenuMonitor Database of menus from 7000+ U.S.
restaurant chains and independents, and 250 food trucks”
for “Q2 2016”;25
(iii) a list titled “Wisconsin-identified Gruyere Items Found
in WMMB [Wisconsin Milk Marketing Board] Store
Audits”;26 and
(iv) undated “United States Import Statistics” for cheese
from an unknown source.27
Ms. Morris states that “[p]art of [her] responsibilities at USDEC is to research the
market for dairy products including cheese in the U.S. as is needed and to maintain
documents related to those findings, including publications, reports, product
information and labels from products in the marketplace”; that her “responsibilities
at USDEC also include overseeing the monitoring of trademark applications filed by
various organizations for certain cheeses and the keeping of records of the same when
such applications are of interest to USDEC and its members”; that “[i]t is the regular
practice of USDEC to research and collect such information and documents as is
needed and keep records of the results in the ordinary course of business on matters
of concern to our membership”; and that these documents are “a true and correct copy
of a compilation of documents discovered in [her] research and contained in USDEC ’s

24 Id., Exh. 18, 24 TTABVUE 51.
25 Id., Exh. 20, 24 TTABVUE 58.
26 Id., Exh. 21, 24 TTABVUE 60.
27 Id., Exhs. 26 and 27, 24 TTABVUE 349-51.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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business records relating to ‘gruyere’ cheese, which reference gruyere products as
having been produced in the United States or in countries other than Switzerland
and France.”28
The Federal Rules of Evidence provide an exception to the rule against hearsay
for records of regularly conducted activity kept in the ordinary course of business. See
Fed. R. Evid. 803(6). The objected-to documents, however, are not documents that
Ms. Morris’s organization itself prepared. “When a business relies on a document it
has not itself prepared, two factors bear on the admissibility of the evidence as a
business record: ‘[1] that the incorporating business rely upon the accuracy of the
document incorporated[,] and [2] that there are other circumstances indicating the
trustworthiness of the document.’” Christian Faith Fellowship Church v. Adidas AG,
841 F.3d 986, 120 USPQ2d 1640, 1643 (Fed. Cir. 2016) (citing Air Land Forwarders,
Inc. v. United States, 172 F.3d 1338 (Fed. Cir. 1999) (“the cases stress two factors,
indicating reliability, that would allow an incorporated document to be admitted
based upon the foundation testimony of a witness with first-hand knowledge of the
record keeping procedures of the incorporating business, even though the business
did not actually prepare the document. The first factor is that the incorporating
business rely upon the accuracy of the document incorporated and the second is that
there are other circumstances indicating the trustworthiness of the document.”)). Ms.
Morris has not persuaded us that there are other circumstances indicating the
trustworthiness of the documents. For example, she has not stated that USDEC, or

28 Id. at ¶¶ 4-5, 23 TTABVUE 6.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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anyone else, relies on the accuracy of these documents. Applicants’ hearsay objection
to these exhibits is sustained.
Ms. Morris also submitted photographs of cheese labels with her Declaration.29
Even though Applicants’ objections on the grounds of no personal knowledge and no
foundation to these exhibits have not been sustained (see discussion, supra), because
there is no information as to when and where they were obtained, these exhibits have
little probative value. We do not further consider these photographs.
vi. Remaining Objections
With regard to Applicants’ remaining objections, we need not rule on each of them
because we are capable of weighing the relevance and strength or weakness of the
objected-to evidence, including any inherent limitations. See e.g., Norris v. PAVE:
Promoting Awareness, Victim Empowerment, 2019 USPQ2d 370880, 2 (TTAB 2019)
(quoting Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1737 (TTAB 2014));
Tao Licensing, 125 USPQ2d at 1047. As necessary and appropriate, we point out any
limitations in the evidence or otherwise note that the evidence cannot be relied upon
in the manner sought. See Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121
USPQ2d 1477, 1479 (TTAB 2017); Kohler Co. v. Honda Giken Kogyo K.K., 125
USPQ2d 1468, 1478 (TTAB 2017) (where parties devoted more than 30 pages of their
briefing to numerous detailed evidentiary objections, Board exercised discretion to
rule explicitly only on major objections).

29 Id., Exhs. 6-7, 11-15, 24 TTABVUE 17, 19, 35-44.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 18 -
b. Nonconforming Evidence
We now address that evidence which does not comport with Board practice.
1. Both parties submitted documents in whole or in part in a foreign language
without an English translation.30 Material in foreign languages which has not been
translated into English has limited probative value. Swiss Watch Int’l Inc. v. Fed. of
the Swiss Watch Ind., 101 USPQ2d 1731, 1734 n.8 (TTAB 2012); TBMP § 104 (“If a
party intends to rely upon any submissions that are in a language other than English,
the party should also file a translation of the submissions. If a translation is not filed,
the submissions may not be considered”), and cases cited therein.
2. Reference materials from foreign sources pertaining to cheese, even if in
English, have limited probative value on the question of genericness because they do
not reflect usage, or exposure to consumers, of the term GRUYERE in the United
States.31 In re Consolidated Cigar Corp., 13 USPQ2d 1481, 1483 (TTAB 1989) (“We
agree with applicant that the evidence relating to generic use of ‘whiffs’ in Great
Britain is, by and large, irrelevant to the genericness of the term in the United States.
The relevant test is, of course, consumer perception in this country.”); cf. In re Bayer
AG, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007) (information originating
on foreign websites or in foreign news publications may be relevant to discern United
States consumer impression of a proposed mark if it is shown they are accessible to
the United States public).

30 See, e.g., Opposers’ Notice of Reliance Exhs. 79, 80, 28 TTABVUE 254-56.
31 See, e.g., Aidan Ellis, Guide Du Fromage (English ed.) (Harper & Row Publishers (U.K.)
1973). Opposers’ Notice of Reliance Exh. 98, 28 TTABVUE 796.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 19 -
3. Applicants submitted materials bearing web addresses without a copy of the
corresponding web pages.32 The mere listing of a web address or hyperlink is
insufficient to make the webpages associated with that address or hyperlink of record.
See In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1194 n.21 (TTAB 2018); In
re Olin Corp., 124 USPQ2d 1327, 1332 n.15 (TTAB 2017) (“Because the information
displayed at a link’s Internet address can be changed or deleted, merely providing a
link to a website is insufficient to make information from that site of record.”).
III. Background
GRUYÈRE cheese has been made in Switzerland since 1115 AD. The name
GRUYÈRE derives from the district of La Gruyère in the Canton of Fribourg in
Switzerland, where it was first made.33 GRUYÈRE cheese has also been made in
France for hundreds of years.34
On December 10, 1981, the Federal Council of Switzerland issued a “Decree on
the protection of the names of Swiss Cheeses” which listed GRUYÈRE as a protected
designation and defined the production requirements for GRUYÈRE cheese. This
protected designation was superseded by adoption of the Protected Designation of
Origin (“PDO”) for GRUYÈRE in 2001.35 The European Union recognized the PDO in
2011 in an agreement between the European Union and Switzerland in 2011.36 In

32 See, e.g., Bardet Decl. ¶¶ 14-18, 38 TTABVUE 6-8.
33 Id. at ¶ 2, 38 TTABVUE 3.
34 Sandoz Decl. ¶ 3, 36 TTABVUE 13.
35 Lehmann Decl.¶ 4-5, 36 TTABVUE 25.
36 Id. at ¶ 17, 36 TTABVUE 27.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 20 -
2012, the French National Institute of Origin and Quality (“INAO”) approved
GRUYÈRE as a “protected geographical indication” (“PGI”) for a limited area in
France, pursuant to an application filed in 2010.37
PDO and PGI designations are used for agricultural
products that traditionally have been produced in a
particular geographic region. When used on a product, the
PDO and PGI designations guarantee that the food product
originates in the specific region or follows a particular
traditional production process. Protected Designation of
Origin (PDO) (or Appellation d ’origine protégée (AOP) in
French) certifies the strongest link to the territory. It
requires that the product comes from a particular region,
that the product’s “quality or characteristics are essentially
or exclusively due to a particular geographical
environment with its inherent natural and human factors,”
and that all aspects of production, processing, and
preparation originate from that region. [PGI] … certifies
the local know how and the close link between the product
and the place or region. For registered products, at least
one of the stages of production, processing or preparation
must take place in the region.
These designations help to highlight the qualities and
tradition associated with registered products and to assure
consumers that these are the genuine products, not
imitations seeking to benefit from the good name and
reputation of the original. As a result, these geographic
designations help producers and groups of producers
market their products better, while providing them with
legal protection from misuse or falsification of a product
name.38

37 Guittard Decl. ¶ 6, 36 TTABVUE 3. INAO is an administrative agency within the French
Ministry of Agriculture, Food, and Forestry. Id. at ¶ 1, 36 TTABVUE 2.
38 Lehmann Decl. ¶¶ 6-7, 36 TTABVUE 25.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 21 -
IDG is responsible for the certification rules for the production of GRUYÈRE
cheese in Switzerland; it controls which cheeses may be sold under the GRUYÈRE
PDO, and controls the use of the GRUYÈRE PDO, in Switzerland.39
SIG is an association of three main groups of entities and individuals involved in
the production of GRUYÈRE cheese in France: milk producers, cheesemakers, and
“cheese maturers.” SIG administers the certification rules for the use in France of the
GRUYÈRE PGI, certifies which cheese may bear the GRUYÈRE PGI, and controls
the use of the GRUYÈRE PGI in France.40
Millions of pounds of cheese labeled with the Swiss PDO GRUYÈRE are imported
into the United States from Switzerland per year.41 According to SIG records,
approximately 14,000 pounds of cheese labeled with the French PGI GRUYÈRE have
been exported from France to the United States for the period 2013-2017.42
IV. Standing
A threshold issue in every inter partes case is the plaintiff ’s standing to challenge
registration. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014); John W. Carson Found. v. Toilets.com, Inc., 94
USPQ2d 1942, 1945 (TTAB 2010). The U.S. Court of Appeals for the Federal Circuit
has enunciated a liberal threshold for determining standing, namely that a plaintiff
must demonstrate that it possesses a “real interest” in a proceeding beyond that of a

39 Bardet Decl. ¶ 1, 37 TTABVUE 2.
40 Sandoz Decl. ¶ 2, 36 TTABVUE 12.
41 Bardet Decl. ¶ 2, 37 TTABVUE 3.
42 Sandoz Decl. ¶ 8, 36 TTABVUE 15.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 22 -
mere intermeddler, and “a reasonable basis for his belief of damage.” Empresa
Cubana Del Tabaco, 111 USPQ2d at 1062; Ritchie v. Simpson, 170 F.3d 1092, 50
USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670
F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). A “real interest” is a “direct and personal
stake” in the outcome of the proceeding. Ritchie, 50 USPQ2d at 1026. A belief in likely
damage can be shown by establishing a direct commercial interest. Cunningham v.
Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000).
Where, as here, there are multiple opposers, each opposer must plead and prove
its own standing in each proceeding. Stuart Spector Designs, Ltd. v. Fender Musical
Instruments Corp., 94 USPQ2d 1549, 1553 (TTAB 2009); Apollo Med. Extrusion
Techs., Inc. v. Med. Extrusion Techs., Inc., 123 USPQ2d 1844, 1848 (TTAB 2017).
Where a plaintiff has proven standing as to at least one properly pleaded ground, it
has established standing for any other legally sufficient ground. See, e.g., Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727-28
(Fed. Cir. 2012) (“[O]nce an opposer meets the requirements for standing, it can rely
on any of the statutory grounds for opposition set forth in 15 U.S.C. § 1052.”);
Petróleos Mexicanos v. Intermix S.A., 97 USPQ2d 1403, 1405 (TTAB 2010).
Neither Opposers nor Applicants have addressed the issue of Opposers’ standing
in their briefs. We therefore have reviewed the record to determine whether each
Opposer has established its standing.
a. U.S. Dairy Export Council
Under Trademark Act Section 13, 15 U.S.C. § 1063, “[a]ny person who believes
that he would be damaged ... by the registration of a mark upon the principal register”
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 23 -
may file an opposition. The term person includes “a juristic person” which includes
associations. Trademark Act Section 42, 14 U.S.C. § 1127. An “association” is a
recognized juristic entity when it is organized under state laws or federal statutes
that govern this form of organization. TRADEMARK MANUAL OF EXAMINING PROCEDURE
(TMEP) § 803.03(c) (2019). An association has standing if it proves that: (1) its
members would otherwise have standing to sue in their own right; (2) the interests it
seeks to protect are germane to the organization’s purpose; and (3) neither the claim
asserted nor the relief requested requires the participation of individual members in
the lawsuit. Jewelers Vigilance Comm., Inc. v. Ullenberg Corp., 823 F.2d 490,
2 USPQ2d 2021, 2025 (Fed. Cir. 1987).
We first look to USDEC’s pleading regarding its standing. USDEC pleaded that;
(i) it is a trade organization that represents the global trade interests of U.S. dairy
producers, proprietary processors and cooperatives, ingredient suppliers and export
traders; (ii) it “has more than 120 members in these industries, including a company
with a commercial interest in non-French and non-Swiss gruyere cheese in the United
States”; (iii) its members have strong interests in preserving the integrity of U.S.
cheese standards of identity, upon which numerous members rely to provide U.S.
government guidance on a variety of common cheese terms; (iv) “if Applicants’
certification mark application for GRUYERE is approved for registration, Applicants
would have the prima facie exclusive right to control the use of the term GRUYERE
as a mark certifying certain kinds of cheese products”; and (v) “[s]uch registration
will directly damage Opposer, Opposer’s members, consumers, and others who have
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 24 -
a right to use the common food name GRUYERE to identify gruyere cheese products
in the United States.”43 We find that USDEC has properly pleaded its standing.
In support of USDEC’s standing, Ms. Morris states:
USDEC is a non-profit, independent membership
organization that represents the global trade interests of
United States-based dairy producers, processors,
cooperatives, ingredient suppliers, and export traders.
USDEC seeks to enhance demand for U.S. dairy products
and ingredients, which we accomplish through a variety of
approaches including research and collaboration with our
members, governmental entities, and other organizations
whose common goal is to ensure the health and vitality of
the United States dairy industry.44
We find that USDEC has established its standing to represent its members under
the Jeweler’s Vigilance test. First, those of USDEC’s members who manufacture,
import or sell cheeses would have the standing to oppose registration of Applicants’
mark in their own right, especially on the grounds asserted in this proceeding. We
have not located any evidence of record identifying entities that are members of
USDEC, but its membership as described by Ms. Morris allows for the inclusion of
entities such as Atalanta and Intercibus, which are plaintiffs with standing in this
proceeding. (See discussion infra.) Second, Ms. Morris states that USDEC’s purpose
is to represent the global trade interests of U.S. dairy producers, proprietary
processors and cooperatives, ingredient suppliers and export traders that have strong
interests in preserving the integrity of U.S. cheese standards of identity, upon which
numerous members rely to provide U.S. government guidance on a variety of common

43 Notice of Opposition at ¶¶ 6-10 (Opp. No. 91232442), 1 TTABVUE 5-6.
44 Morris Decl. ¶ 2, 23 TTABVUE 5-6.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 25 -
cheese terms. As a USDEC employee, Ms. Morris “oversee[s] the monitoring of
trademark applications filed by various organizations for certain cheeses and .,.
[keeps] records of the same when such applications are of interest to USDEC and its
members.”45 The ability to refer to non-Swiss and non-French cheese as “gruyere”
thus is germane to USDEC’s purpose. See Univ. Book Store v. Univ. of Wisc. Bd. of
Regents, 33 USPQ2d 1385, 1392 (TTAB 1994) (“opposing the registrations sought by
applicant is germane to WMF’s purpose inasmuch as part of its mission is to promote
the economic interests of its members ….”). Finally, the proceeding and the relief
sought — denial of registration of the applied for mark — does not require the actual
participation of USDEC’s members in the proceeding. USDEC claims genericness and
failure to control, which are not specific to a particular entity. USDEC thus has
“standing to seek relief on the basis of the legal rights and interest of others.” Warth
v. Seldin, 422 U.S. 490, 501 (1974).
b. International Dairy Foods Association
There is no information in the record concerning IDFA and there is no argument
in the briefs regarding IDFA’s standing. Because a party must establish its standing
to prevail before the Board, and IDFA has not done so, IDFA’s opposition (Opp. No.
91232427) is dismissed with regard to both pleaded claims.46

45 Id. at ¶ 4, 23 TTABVUE 6.
46 In view of our dismissal of IDFA’s opposition, the term “Opposers” is amended to hereafter
refer to the remaining plaintiffs in this consolidated proceeding.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 26 -
c. Atalanta Corporation and Intercibus, Inc.
Atalanta and Intercibus both plead that they have used the term GRUYERE in
connection with the importation and resale of cheese produced in Austria, Germany
or Finland for many years; and that “[i]f Applicants’ certification mark application
for GRUYERE is approved for registration, Applicants would have the prima facie
exclusive right to control the use of the term GRUYERE as a mark certifying certain
kinds of cheese products. Such registration will directly damage Opposer, consumers,
and others who have a right to use the common food name GRUYERE to identify
gruyere cheese products in the United States.”47
When challenging a term as generic, a plaintiff may establish standing by showing
that it is engaged in the sale of goods that are the same as or related to those covered
by the challenged mark. See Eastman Kodak Co. v. Bell & Howell Document Mgmt.
Prods. Co., 23 USPQ2d 1878, 1879 (TTAB 1992), aff’d, 994 F.2d 1569, 26 USPQ2d
1912 (Fed. Cir. 1993); Binney & Smith Inc. v. Magic Marker Indus., Inc., 222 USPQ
1003, 1010 (TTAB 1984).
Mr. Gellert, President of Atalanta, testified that Atalanta imports and sells
“pretty much every sort of core variety of cheese that you could imagine” to food
service distributors, major retailers and food manufacturers;48 and IDG’s counsel has
sent Atalanta a cease and desist letter.49 See Ipco. Corp. v. Blessings Corp., 5 USPQ2d
1974, 1976-77 (TTAB 1988) (standing found where applicant had sent opposer cease

47 Opp. No. 9123446, 1 TTABVUE; Opp. No. 91232448, 1 TTABVUE.
48 Gellert Depo. at pp. 10-11, 31 TTABVUE 12-13.
49 Opposers’ Notice of Reliance Exh. 122, 40 TTABVUE 119-20.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 27 -
and desist letters). Further, Mr. Jaeckle, an officer of Intercibus, testified that
Intercibus imports “Austrian Gruyere” and resells cheese;50 and that IDG visited the
Intercibus display in a Fancy Food Show in New York and “created a bit of a stir by
insisting that we remove our display of Gruyere and insisting that … the only
Gruyere came from Switzerland and that it was illegal for us to display cheese not …
labeled Gruyere.”51
In view of the forgoing, we find that Atalanta and Intercibus have properly
pleaded and established their standing.
V. Genericness
We now consider Opposers’ claim of genericness. If Opposers prevail on this
claim, we need not consider their claim pertaining to a lack of control of the applied-
for certification mark.
“A generic name—the name of a class of products or services—is ineligible for
federal trademark registration.” USPTO v. Booking.com B.V., 140 S. Ct. 2298, 2020
USPQ2d 10729, *1 (2020). There is a two-part test used to determine whether a
designation is generic: (1) what is the genus of goods or services at issue; and (2) does
the relevant public understand the designation primarily to refer to that genus of
goods or services? H. Marvin Ginn Corp. v. Int’l Assn. of Fire Chiefs, Inc., 782 F.2d
987, 228 USPQ 528, 530 (Fed. Cir. 1986). The relevant public’s perception is the
primary consideration in determining whether a term is generic. Loglan Inst. Inc. v.

50 Jaeckle Depo. at pp. 13-14, 32 TTABVUE 15.
51 Id. at pp. 35-36, 32 TTABVUE 37-38.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 28 -
Logical Language Grp. Inc., 902 F.2d 1038, 22 USPQ2d 1531, 1533 (Fed. Cir. 1992).
We may obtain evidence of the public’s understanding of a term from any competent
source, including testimony, surveys, dictionaries, trade journals, newspapers and
other publications. Id.; see also Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127
USPQ2d 1041, 1046 (Fed. Cir. 2018); Dan Robbins & Assocs, Inc. v. Questor Corp.,
599 F.2d 1009, 202 USPQ 100, 105 (CCPA 1979). “[A] term is generic if the relevant
public understands the term to refer to part of the claimed genus of goods or services,
even if the public does not understand the term to refer to the broad genus as a
whole.” In re Cordua Rests., Inc. 823 F.3d 594, 118 USPQ2d 1632, 1638 (Fed. Cir.
2016). A generic term may refer to a category of products. Royal Crown, 127 USPQ2d
at 1046 (“We made clear [in Cordua] that ‘[t]here is no logical reason to treat
differently a term that is generic of a category or class of products where some but
not all of the goods identified in an application fall within that category. ’ [Cordua,
118 USPQ2d] at 605 (quoting In re Analog Devices, Inc., [6 USPQ2d 1808, 1810
(TTAB 1988)]).”
It is Opposers’ burden to establish that GRUYERE is generic by a preponderance
of the evidence. Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114
USPQ2d 1827, 1830 (Fed. Cir. 2015) (“In an opposition or cancellation proceeding,
the opposer or petitioner bears the burden of proving genericness by a preponderance
of the evidence.”) (citing Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d
1551, 1554 (Fed. Cir. 1991); Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc.,
107 USPQ2d 1750, 1761 (TTAB 2013), aff’d, 565 Fed. Appx. 900 (Fed. Cir. 2014)).
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 29 -
a. The genus of the goods at issue
The genus of the goods typically is determined by focusing on the identification of
goods in the subject application. See Cordua Rests., 118 USPQ2d at 1636; Magic
Wand, 19 USPQ2d at 1552 (“[A] proper genericness inquiry focuses on the description
of [goods or] services set forth in the [application or] certificate of registration.”);
Milwaukee Elec. Tool Corp. v. Freud Am., Inc., 2019 USPQ2d 460354, *8 (TTAB 2019)
(citing Magic Wand); Sheetz of Del., Inc. v. Doctor’s Assocs. Inc., 108 USPQ2d 1341,
1350 (TTAB 2013). Here, we find the genus to be established by the identification of
goods, “cheese.”52
b. The relevant public
The relevant public for a genericness determination is the purchasing or
consuming public for the identified goods. Magic Wand, 19 USPQ2d at 1553 (citing
In re Montrachet S.A., 878 F.2d 375, 11 USPQ2d 1393, 1394 (Fed. Cir. 1989)); In re
Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143
(Fed. Cir. 1987); Marvin Ginn, 228 USPQ at 530; Dan Robbins & Assocs., 202 USPQ
at 105. Here, the relevant public consists of members of the general public who
purchase or consume cheese.
c. Public perception
We now consider whether the relevant public understands the designation
primarily to refer to the genus or a part thereof. We set forth below the pertinent
evidence of record, which includes dictionary definitions, articles and excerpts from

52 The parties did not address the genus in their briefs.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 30 -
articles, government regulations, statistics, webpages, witness testimony, and
promotional materials. See Alcatraz Media, 107 USPQ2d at 1762 (“Competent
sources to show the relevant purchasing public ’s understanding of a contested term
include purchaser testimony, consumer surveys, dictionary definitions, trade
journals, newspapers and other publications.” (citations omitted)).
i. Evidence Relied on by Opposers
Definitions of “gruyere”53
● thefreedictionary.com
American Heritage Dictionary of the English Language (Fifth Ed. 2016)
“A nutty, pale yellow, firm cheese made from cow ’s milk.”

Random House Kernerman Webster’s College Dictionary (2010)
“a firm yellow cow’s milk cheese, esp. of France and Switzerland, having
small holes.”54

● oxforddictionaries.com

A firm tangy cheese.55
Definition of “gruyere cheese”
● merriam-webster.com
1 : a pressed whole-milk cheese of a pale yellow color and nutty flavor and
usually with small holes

53 The entry from collinsdictionary.com (Opposers’ Notice of Reliance Exh. 85, 28 TTABVUE
552-53) is of no probative value because it contains the British spelling of the term “colour,”
reflecting that it is British English, not American English. The issues before us concern the
perceptions of American, not British, consumers. Cf. In re Consolidated Cigar, 13 USPQ2d
at 1483 (“We agree with applicant that the evidence relating to generic use of ‘whiffs’ in Great
Britain is, by and large, irrelevant to the genericness of the term in the United States. The
relevant test is, of course, consumer perception in this country.”).
54 http://www.thefreedictionary.com/Gruyere, Opposers’ Notice of Reliance Exh. 88, 28
TTABVUE 577-78.
55 https://en.oxforddictionaries.com/definition/us/gruyere, Opposers’ Notice of Reliance Exh.
87, 28 TTABVUE 570-71.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 31 -
2 : a process cheese made in small forms and wrapped in foil.56

Uses of “gruyere cheese” in the press
Approximately 50 uses of “gruyere cheese” in excerpts of articles from May 2010
to February 2011, including the following:
● Chicago Tribune
October 7, 2010
Ready for the marathon? We offer places to get your carbo-load on[.]
... kasespatzle ($15.95) takes house-made spaetzle and adds crispy
bacon, caramelized onions and scallions. It ’s then baked with gruyere
cheese until each gooey forkful is trailed by dangling cheese threads.57

● Orange County Register (California)
December 16, 2010
Paris in a Cup carries the tea room torch[.]
... plenty for two to fill up, but I wanted to try the Genevieve ($16),
a quiche made with gruyere cheese, spinach and onion. It was
rather rustic, with a thick flaky puff pastry crust, and had been
baked in a round ….58

● The Oregonian (Portland Oregon)
December 3, 2010
Rucker’s fledgling ready for takeoff
... Bancorp Tower, across Southwest Sixth Avenue, and other
downtown digs might order a simple Parisian ham, gruyere
cheese, mustard and greens on baguette sandwich ($7) or the
sublime “Le Pigeon” burger with fries ($10) or a ....59

Uses of “Wisconsin gruyere” in the press
Ten uses of “Wisconsin gruyere” appearing in excerpts of articles dated from
Feb. 1, 2001 to July 17, 2011, including the following:

56 https://www.merriam-webster.com/dictionary/Gruy%C3%A8re%20cheese, Opposers’
Notice of Reliance Exh. 86, 28 TTABVUE 558-59.
57 Id. at Exh. 89, 28 TTABVUE 593.
58 Id., 28 TTABVUE 587.
59 Id., 28 TTABVUE 589.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 32 -
● The Houston Chronicle
September 16, 2010
Houston Dairymaids warehouse adds tastings [-] Sample artisan cheese
One recent tasting featured the top winners from the latest
American Cheese Society confab in Seattle, so I went home with
hunks of a shockingly good Wisconsin gruyere, the Grand Cru
Gruyere Surchoix from Wisconsin. I had no idea an American
gruyere could approach the deep, nutty tang of its European
Alpine cousins.60

Use of “gruyere” in reference materials and trade and merchant publications
● Herbst, Sharon Tyler, and Herbst, Ron, The Cheese Lover ’s Companion
(2007)

Under the entry for “Gruyère (AOC)” and states, “[i]n America, Roth
Käse USA Ltd., of Monroe, Wisconsin, makes an award-winning version
called Grand Cru Gruyere. … They produce three versions of Gruyere
….”61

● Cheese Market News (May 25, 2007)

Gruyere appeals to chefs and consumers alike with flavor

Gruyere is a name controlled product in the European Union, and
while it is best known as a Swiss cheese, all the countries
surrounding the Alps – Germany, Austria, France and
Switzerland – have a tradition of making Gruyere…. In
competition, Roth Käse Gruyere has stood toe-to-toe with Swiss
Gruyere and held its own.”62

● Peterson “Specialty Cheese Catalog” (April 17, 2013)

Beecher’s signature cheese, Flagship is a creamy combination of cheddar
and gruyere, carefully aged for one year and delivering a distinctive,
robust, nutty flavor. … Roth Käse – Monroe, WI [-] Nestled in the rolling

60 Opposers’ Notice of Reliance Exh. 90, 28 TTABVUE 638.
61 Id. at Exh. 105, 28 TTABVUE 832-33.
62 Id. at Exh. 82, 28 TTABVUE 269. Applicants’ objection on the ground of hearsay to this
publication (48 TTABVUE 6) is overruled. We consider the statement not for the truth of the
matter asserted, but as exposing readers to the statement that there are other non-Swiss and
non-French sources of GRUYERE. See Safer, 94 USPQ2d at 1039.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 33 -
hills of Southern Wisconsin, Roth Käse ’s chalet factory houses a Swiss-
made copper vat for the traditional production of Gruyère.63

● Atalanta brochure

Listing Ammerlander cheeses including “gruyere” as a cheese along with
Fontina,64 Swiss, Gouda and Smoked Gruyere as company product
selections sourced in Germany.65

Internet evidence
● http://www.cheesemakingrecipe.com (downloaded Feb. 10,
2011)
How to Make Homemade Gruyere Cheese.66
● http://www.practically edible.com (downloaded Feb. 10, 2011)
American-made Gruyere will be aged 3 months.67
● http://www.bolenvalecheese.com (downloaded Feb 25, 2011)
Check out our large selection of the finest cheeses
Wisconsin has to offer! …

63 Opposers’ Notice of Reliance Exh. 84, 28 TTABVUE 481-549. Exh. 135 to Opposers’
Corrected Notice of Reliance is a letter from IDG’s counsel addressed to “Peterson Company”
of Auburn, Washington, and identifies Peterson as a seller of cheese, with a website.
Applicants maintain that the Peterson catalog is out of date because it mentions Roth’s
Wisconsin “Gruyere” and Roth has since changed the name to GRAND CRU. See Applicants’
brief at p. 38-39, 47 TTABVUE 40-41. The catalog does not bear a date but other evidence
shows that Emmi Roth discontinued using the term “gruyere” on cheese bearing its label in
2014. Because 2014 was not too long prior to trial which began in mid-2018, the probity of
this document is not reduced as Applicants would have us find.
64 In In re Cooperative Produttori Latte E Fontina Valle D’Aosta, 230 USPQ 131, 134 (TTAB
1986), the Board found that “fontina” is not a certification mark indicating regional origin,
but that “fontina” primarily signifies a type of cheese (much like brie, swiss, parmesan or
mozzarella) regardless of regional origin.
65 Mr. Gellert identified Atalanta’s purchasers as “food service distributors, major retailers
and food manufacturers.” Gellert Depo. at p. 10, 31 TTABVUE 12.
66 Opposers’ Notice of Reliance Exh. 90, 28 TTABVUE 606.
67 Id., 28 TTABVUE 608.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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Gruyère-$11.2568
● http://www.sidwainer.com (downloaded Feb. 25, 2011)
Our Gruyere, made with time-honored techniques which
date back to the twelfth century is a product of the USA.69
● http://eatwisconsincheese.com (downloaded March 1, 2010)
Listing “Gruyere”70
● http://houseofwisconsincheese.com (downloaded March 1, 2012)
Listing “Gruyere” along with “Cheddar,” “Cottage Cheese”
and “Farmer’s,” and stating “Today, Wisconsin
cheesemakers produce award-winning, hand-crafted
Gruyere using classic production techniques and hand-
crafted copper vats.”71
● www.wacheese-gifts.com (downloaded September 9, 2016)
Grand Cru Gruyere … Origin: Wisconsin
Grand Cru Gruyere Surchoix … Origin: Wisconsin
Grand Cru Gruyere Reserve … Origin: Wisconsin72

● www.cheezwhse.com (downloaded September 9, 2016)
Austrian Alps Gruyere … Based on the popular cheese
from Switzerland by the same name, this pasteurized
Gruyere is also made in the Alps, but in Austria.73
● www.savorysweetlife.com (downloaded September 9, 2016)
Bacon Mac & Cheese with Wisconsin Gruyère74
● www.recipegoldmine.com (downloaded September 9, 2016)

68 Id., 28 TTABVUE 621.
69 Id., 28 TTABVUE 622.
70 Id., 28 TTABVUE 649.
71 Id., 28 TTABVUE 659-60.
72 Id., 28 TTABVUE 679-81.
73 Id., 28 TTABVUE 682.
74 Id., 28 TTABVUE 682.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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Green Bean and Wisconsin Gruyère Casserole with Spicy
Onion Rings75
● www.jonesdairyfarm.com (downloaded September 9, 2016)
Ham & Wisconsin Gruyère Spirals76
● www.igourmet.com (downloaded September 9, 2016)
Austrian Alps Gruyere
A delicacy originally from the Gruyere district of
Switzerland, this cheese is best known as a key fondue
ingredient. This Austrian version offers all you’d expect in
an Alpine Gruyere.77
● www.dairyspot.com (downloaded September 9, 2016)
Wisconsin Gruyère cheese, grated
● https://chefswarehouse.com (downloaded September 9, 2016)
Gruyere Natural Austrian …
Country of Origin: Austria78
● www.cheesedelicatessen.com (downloaded September 9, 2016)
Smoked Gruyere Cheese From Germany79
● www.caputocheesemarket.com (downloaded September 9,
2016)
Gruyere Austrian $8.99
Gruyere cheese is made throughout the Alps.80
● http://boarshead.com (downloaded July 13, 2017)

75 Id., 28 TTABVUE 684.
76 Id., 28 TTABVUE 685.
77 Id., 28 TTABVUE 686.
78 Id., 28 TTABVUE 686.
79 Id., 28 TTABVUE 690.
80 Id., 28 TTABVUE 691.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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BLANC GRUE GRUYERE CHEESE
Prepared in the traditional manner in copper vats, this
earthy cheese is made with milk from small family farms
in Wisconsin.81
● http://www.cheesedelicatessen.com (downloaded July 11, 2017)
Austrian Alps Gruyere ½ lb.82
● http://www.cheezwhse.com (downloaded July 11, 2017)
Austrian Alps Gruyere83
● https://scontent.fewrl-2.fna.fbcdn.net (downloaded July 13,
2017)
Austrian Gruyere $4.99/lb[.]84
● https://cariboucoffee.com (downloaded July 12, 2017)
HAM AND GRUYERE PRETZEL ROLL
Roasted Black Forest ham, Austrian Gruyere cheese and
Dijon mustard on a pretzel roll85
● https://todaytopreviews.com/gruyere-cheese/ (downloaded July
12, 2017)
Austrian Alps Gruyere …
Wisconsin Gruyere Cheese
What is Gruyere cheese made in America? Well, the
Wisconsin Gruyere is a rich melting cheese ideal for scallop
potatoes with Gruyere cheese, fondue dip for nachos, that
is comparable to the Swiss version. Not among the
substitutes for Gruyere, but a real, homemade style kind of
cheese with high nutrition values, Wisconsin Gruyere is a
delight in any recipe. With a price of only $11 per 8 ounces,

81 Id., Exh. 99, 28 TTABVUE 800.
82 Id., Exh. 100, 28 TTABVUE 803.
83 Id., 28 TTABVUE 804.
84 Id., 28 TTABVUE 805.
85 Id., Exh. 101, 28 TTABVUE 807.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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you should definitely try this affordable lightly smoked
Gruyere cheese.86
● http://www.igourmet.com (downloaded July 11, 2017)
Austrian Alps Gruyere is another Gruyere type, made in
Austria.
Gruyere Cheese Information
Igourmet.com sells over 700 cheeses, from around the
world. One of our favorites is Gruyere. An Alpine cheese,
Gruyere is made in Switzerland, France and Austria. A
wonderful new family of Gruyere [c]heeses is also being
made in Wisconsin by Emmi Roth USA.87
● http://www.wacheese-gifts.com (downloaded July 12, 2017)
GRAND CRU GRUYERE RESERVE88
● http://www.cheesers.com (downloaded July 12, 2017)
Wisconsin Gruyere 8 oz[.]89

86 Id., Exh. 102, 28 TTABVUE 813, 815.
87 Id., Exh. 103, 28 TTABVUE 821-22.
88 Id., Exh. 104, 28 TTABVUE 824.
89 Id., 28 TTABVUE 825.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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Internet Evidence from Producers and Sellers (downloaded November 2018)90
● https://www.ralphs.com/search?query=gruyere91

90 Applicants maintain that three of the merchants listed in this grouping have discontinued
use of “gruyere” for private label cheese. (Applicants’ brief at 35, 47 TTABVUE 37.) Even if
true, the webpage evidence reflects that consumers were still exposed to generic uses of
“gruyere” as of November 2018.
91 Opposers’ Second Notice of Reliance Exh. 161, 39 TTABVUE 7. The webpage lists the
following; Boar’s Head Gruyere Cheese, Murry’s Gruyere, Gerber Emmi Le Gruyere, Boar’s
Head Smoked Gruyere Cheese, Murray’s Cave Aged Gruyere and Boar’s Head Hickory
Smoked Gruyere Cheese.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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● https://boarshead.com/products/detail/974-pre-cut-gruyere-cheese92

92 Id., Exh. 162, 39 TTABVUE 10.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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● http://www.mandifoods.com/shop/search.aspx?sfield=keywords&search=gruy
ere93

93 Id., Exh. 163, 39 TTABVUE 13.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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● https://www.redapplecheese.com/products/apple-smoked-cheese94

94 Id., Exh. 164, 39 TTABVUE 16.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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● http://www.foodinno.com/?post_type=product&s=gruyere95

Food and Drug (“FDA”) regulation regarding “Gruyere”
Section 133.149 of 21 C.F.R.,96 which provides a standard of identity for “gruyere
cheese,” does not refer to a required origin but does specify that the cheese “contains

95 Id., Exh. 165, 39 TTABVUE 21.
96 The regulation provides in relevant part:
(a) Description. (1) Gruyere cheese is the food prepared by the procedure set
forth in paragraph (a)(3) of this section or by any other procedure which
produces a finished cheese having the same physical and chemical properties.
It contains small holes or eyes. It has a mild flavor, due in part to the growth
of surface-curing agents. The minimum milkfat content is 45 percent by weight
of the solids and the maximum moisture content is 39 percent by weight, as
determined by the methods described in § 133.5. The dairy ingredients used
may be pasteurized. The cheese is at least 90 days old.
(2) If pasteurized dairy ingredients are used, the phenol equivalent value of
0.25 gram of gruyere cheese is not more than 3 micrograms as determined by
the method described in § 133.5.
(3) One or more of the dairy ingredients specified in paragraph (b)(1) of this
section may be warmed and is subjected to the action of lactic acid-producing
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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small holes or eyes”; “has a mild flavor”; has a “minimum milkfat content [of] 45
percent,” and a “maximum moisture content [of] 39 percent”; and “is at least 90 days
old.” 21 C.F.R. § 133.149(a)(1). The regulation describes the process by which the
cheese must be prepared and the ingredients that can be used in it in order for the
cheese to be labeled with the term “gruyere cheese.”
USDA Material
● http://apps.fas.usda.gov (U.S. Department of Agriculture Foreign
Agricultural Service)97

“Results of search in USDA database showing source of processed
gruyere98 imported to United States” (September 9, 2016)

and propionic acid-producing bacterial cultures. One or more of the clotting
enzymes specified in paragraph (b)(2) of this section is added to set the dairy
ingredients to a semisolid mass. The mass is cut into particles similar in size
to wheat kernels. For about 30 minutes the particles are alternately stirred
and allowed to settle. The temperature is raised to about 126°F. Stirring is
continued until the curd becomes firm. The curd is transferred to hoops or
forms, and pressed until the desired shape and firmness are obtained. The
cheese is surface-salted while held at a temperature of 48° to 54°F for a few
days. It is soaked for 1 day in a saturated salt solution. It is then held for 3
weeks in a salting cellar and wiped every 2 days with brine cloth to insure
growth of biological curing agents on the rind. It is then removed to a heating
room and held at progressively higher temperatures, finally reaching 65 °F
with a relative humidity of 85 to 90 percent, for several weeks, during which
time small holes, or so-called eyes, form. The cheese is then stored at a lower
temperature for further curing. One or more of the other optional ingredients
specified in paragraph (b)(3) of this section may be added during the procedure.
***
(c) Nomenclature. The name of the food is “gruyere cheese”.
97 Opposers’ Notice of Reliance Exh. 92, 28 TTABVUE 674.
98 Mr. Gellert testified regarding gruyere processed cheese that “it’s taking natural cheese
and melting it and reformulating [it] to a processed cheese. The main ingredient is a Gruyere
cheese. We have done that both from Switzerland and from Germany for dozens of years.”
Gellert Depo. at p. 12, 31 TTABVUE 14.
21 C.F.R. § 133.169(a)(1) defines “pasteurized process cheese” as “the food prepared by
comminuting and mixing, with the aid of heat, one or more cheeses of the same or two or
more varieties, except cream cheese, neufchatel cheese, cottage cheese, lowfat cottage cheese,
cottage cheese dry curd, cook cheese, hard grating cheese, semisoft part-skim cheese, part-
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 44 -

Witness Testimony
● Mr. Gellert testified that Atalanta imports and sells a cheese labeled
“gruyere” cheese sourced in Austria (Austrian Alps brand) and in Germany
(Ammerland brand).99

● Mr. Jaeckle testified that his business cuts and packs Emmi Roth and
Boar’s Head cheese; that the only source of Wisconsin gruyere is Emmi Roth;
and there are other smaller producers of a cheese referred to as “gruyere” in
the United States.100 He also testified that some cheese referred to as “gruyere”

skim spiced cheese, and skim milk cheese for manufacturing with an emulsifying agent
prescribed by paragraph (c) of this section into a homogeneous plastic mass.” 21 C.F.R.
§ 133.169(e)(2)(i) states, “In case it is made from gruyere cheese and swiss cheese, and the
weight of gruyere cheese is not less than 25 percent of the weight of both, it may be designated
‘Pasteurized process gruyere cheese.’”
99 Gellert Depo. at pp. 14-15, 31 TTABVUE 16-17.
100 Jaeckle Depo. at p. 36, 32 TTABVUE 38.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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is sold as Grand Cru cheese but some is packed under private labels bearing
the name “gruyere.”101 Exh. 66 to his testimony deposition reflects a webpage
from http://boarshead.com with the heading “Blanc Grue TM Gruyere Cheese
Boar’s Head” which states that the cheese is made from milk from small family
farms in Wisconsin.102

Emmi Roth
The record reflects that in 1990, Mr. Jaeckle and other investors founded Roth
Kase USA, Inc., the predecessor to Emmi Roth. Roth Kase first produced cheese
labeled as “gruyere” made in the United States in 1991; its “flagship product” and
“primary focus of the business” was cheese produced in the U.S. called “Grandcru
Gruyere.” Roth Kase grew to an 80 million dollar business and Emmi Roth USA, Inc.
purchased the business in 2009. In 2009, at the time of the sale, Roth Kase was “doing
in excess of 2 million pounds of Gruyere cheese.”103
In 2012, Emmi AG, which Applicants identify as the parent company of Emmi
Roth,104 entered into an agreement with IDG in which it agreed not to label cheese
under its own brand as “gruyere.”105 The 2012 agreement states that Emmi AG “will
provide its customers with all necessary information” concerning the GRUYÈRE
certification mark, but will not “play[ ] a control or inspection role” and “[a]ny use of

101 Mr. Jaeckle testified that in 2009 Emmi Roth produced in excess of 2 million pounds of
gruyere, but he did not testify how this gruyere was labeled. Id. at p. 38, 32 TTABVUE 40.
102 Jaeckle Depo. Exh. 66, 32 TTABVUE 146-47.
103 Jaeckle Depo. at pp. 10-11, 32 TTABVUE 12-13.
104 Applicants’ brief at p. 25, 47 TTABVUE 27.
105 Opposers’ brief, Exh. B (English translation), 43 TTABVUE 39.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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Gruyère as a brand name by [Emmi Roth’s] customers, in the context of ‘private
labels’ or gastronomy, would not be [Emmi Roth’s] responsibility.”106
Exhibit C, submitted with Emmi Roth’s discovery responses and discussed
previously in this opinion, indicates that in 2012 and 2013, Emmi Roth produced
millions of pounds of “Domestic Roth branded Gruyere” and “Domestic Private-Label
branded Gruyere”;107 and in the period 2014-2016, Emmi Roth produced no “Domestic
Roth branded Gruyere” but continued to produce millions of pounds of “Domestic
Private-Label branded Gruyere.”
Opposers find Applicants’ actions significant because (i) Emmi Roth’s production
of a cheese referred to as “gruyere” is “massive” and greater than all of the GRUYÈRE
produced in Switzerland by SIG annually;108 (ii) in letters to producers and sellers of
American-made cheese referred to as “gruyere”, IDG emphasized that Emmi Roth
ceased use of the term “gruyere” to describe U.S.-made cheese;109 and (iii) Emmi Roth
has not barred resellers of its U.S.-made cheese from labeling such cheese as
“gruyere.”110

106 Id. The certification mark referred to in the agreement is the LE GRUYÈRE
SWITZERLAND AOC and design mark of Reg. No. 4398395. As noted above, the involved
application was filed on September 17, 2015, after the date of the agreement.
107 The figures in Exhibit C have been designated confidential so we do not disclose them. We
identify, instead, the production figures Applicants disclosed in their brief. Applicants’ brief
at p. 27, 47 TTABVUE 29.
108 Opposers’ Corrected Notice of Reliance Exh. 1, 41 TTABVUE 5.
109 Id. at Exhs. 117-143, 40 TTABVUE 99-229. Exh. 118, 40 TTABVUE 103, a demand letter
to Swiss-American, Inc. authored by Applicants’ counsel states, “Further, Emmi Roth USA,
previously the largest producer and importer of Swiss cheese in the U.S., has acted in
accordance with this decision [to cease using of the term “gruyere” to describe U.S.-made
gruyere] and has ceased all use of the designation Gruyere on its American-produced cheese.”
110 Opposers brief at pp. 22-23, 42 TTABVUE 24-25.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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WCMA Cheese Competition
Opposers submitted a pamphlet and magazine pages showing a list of winners in
the “gruyere” or “gruyere style” category for the World Championship Cheese Contest
in 1995, 1998-2000, 2002, 2004-08, and 2010-2016 as an exhibit to Mr. Umhoefer’s
declaration.111 The record also contains webpage printouts from
http://wccc.myentries.org of competition winners for 2010, 2012, 2014, 2016 and
2018.112
Opposers have not described the competition, but Applicants’ declarant, Mr.
Bardet, states that the Wisconsin Cheese Makers Association runs the World
Championship Cheese Contest every two years, and that the competition includes
categories of cheese.113 He adds that a competition was conducted in 2018 and that
one category in the 2018 competition was called “Gruyere” for cheeses sold under the
name GRUYÈRE; and that:
All but one of the cheeses in this category are produced in
Switzerland and are entitled to use the GRUYÈRE
certification mark. The one exception is a cheese made in
Denmark by a producer named Bornholms Andelsmejeri.
Opposers have not submitted any evidence that this
Danish cheese is even sold in the United States, and we
have not seen any evidence that it is sold in the U.S. In
short, among the hundreds of entrants in the World

111 Opposers’ Corrected Notice of Reliance Exh. 147-57, 40 TTABVUE 279-308.
112 Umhoefer’s Decl. Exh B, 20 TTABVUE 17-48; Opposers’ Notice of Reliance Exhs. 74 – 78,
28 TTABVUE 245-53; Opposers’ Corrected Notice of Reliance Exhs. 148-157, 40 TTABVUE
276-311. Opposers objected to these exhibits on the basis of hearsay but, of course, we do not
rely on this material for the truth of their assertions but only for public exposure to what is
contained therein, which includes listings of non-Swiss or French producers of gruyere. See
Safer, 94 USPQ2d at 1039. The probative value of this material suffers because there is no
indication of who has access to the publications listing the winners.
113 Bardet Decl. ¶ 28, 37 TTABVUE 10-11.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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Championship Cheese Contest, no cheese made in the U.S.
uses the name Gruyère, and, with one minor exception, all
the cheeses that use the name GRUYÈRE are made in
Switzerland.114
Opposers note that non-Swiss and non-French producers are listed as winners
along with Swiss or French winners in the same categories of cheese referred to as
“gruyere” for each year for which there is evidence.
ii. Evidence Relied on by Applicants
Dictionary definitions and reference materials115
● Merriam-Webster online dictionary
a firm cheese with small holes and nutty flavor that is of Swiss origin.116

● Free Dictionary
A kind of cheese made at Gruyère, Switzerland.117
● Wikipedia
a hard yellow cheese, named after the town of Gruyères in Switzerland,
and originated in the cantons of Fribourg, Vaud, Neuchatel, Jura and
Berne. Before 2001, when Gruyère gained Appellation d’Origine
Contrôlée (AOC) status as a Swiss cheese, some controversy existed

114 Id.; Opposers’ Notice of Reliance Exhs. 77-78, 28 TTABVUE 250-53.
115 Applicants request that we take judicial notice of a definition of “gruyère” from
Encyclopedia Britannica. Applicants’ brief at p. 37, 47 TTABVUE 39. Because Applicants did
not submit a copy of the webpage containing the Encyclopedia Britannica entry but only
provided the web address, we deny Applicants’ request. We do, however, take judicial notice
of the following definition of “Gruyère Cheese” located at
https://www.britannica.com/topic/Gruyere (accessed on August 4, 2020); “Gruyère, hard
cow’s-milk cheese produced in the vicinity of La Gruyère in southern Switzerland and in the
Alpine Comté and Savoie regions of eastern France.” The Board may take judicial notice of
dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ
594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online
dictionaries that exist in printed format or regular fixed editions. In re Red Bull GmbH, 78
USPQ2d 1375, 1377 (TTAB 2006).
116 Opposers’ Notice of Reliance Exh. 68, 28 TTABVUE 80.
117 Id.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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whether French cheeses of a similar nature could also be labeled
Gruyère (French Gruyère style cheeses include Comté and Beaufort).118

● The Oxford Companion To Cheese (Oxford University Press, 2016)

Stating “Gruyère is an appellation de contrôlée (AOP) cheese from
Switzerland”119 the best of which “are widely considered among the
greatest of all cheeses”; “‘Cheddar’ has become a generic term
encompassing a vast range of hard cheeses. . . Cheddar is all things to
all people”;120 and “Swiss cheese is the American-born generic term for
a category of cheeses, manufactured and sold primarily in the United
States ….”121

Applicants’ Publicity/Educational Efforts
Mr. Bardet, IDG’s Director, states that; (i) he regularly visits two professional
international trade fairs in the United States, The Specialty Food Association’s
Winter and Summer Fancy Food Shows, where he meets retailers, distributors, and
members of the food service industry and that except for GRUYÈRE cheese from
Switzerland, no exhibitor at either show offers cheese under the Gruyère name; (ii) he
regularly visits retail stores that sell GRUYÈRE cheese in the U.S., where he speaks
to retailers and consumers;122 (iii) IDG works closely with radio stations in such cities
as New York, San Francisco, Philadelphia, Boston and Miami, where IDG has co-
sponsored talks about recipes featuring GRUYÈRE cheese; and (iv) IDG has co-
sponsored videos on the “Saveur” magazine website, including one in which a well-

118 Id.
119 Applicants’ Notice of Reliance Exh.11, 35 TTABVUE 10.
120 Id., 35 TTABVUE 9.
121 Id., 35 TTABVUE 13.
122 Bardet Decl. ¶ 13, 37 TTABVUE 6.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
- 50 -
known chef prepares a dish using GRUYÈRE cheese, and the GRUYÈRE product is
prominently seen in the video.123
Applicants’ policing efforts to limit retailers’ use of “gruyere”
Mr. Bardet states that IDG’s attorneys have conducted a letter-writing campaign
to sellers of non-Swiss or French cheese referred to as “gruyere” and to those who
label cheese as “gruyere” in the U.S. He submitted letters from Applicants’ counsel to
21 retailers including Whole Foods and Ralph’s Supermarkets requesting that they
cease their use of the term “gruyere” for their private label cheese.124 Most of the
letters are dated in the 2016–2017 time period. In those letters, Applicants’ counsel
suggests using terms such as “Swiss-style”125 or “Alpine Style Cheese”126 or “Swiss
cheese” or “Swiss-style cheese”127 to describe cheese referred to as “gruyere.” Mr.
Bardet states that not every retailer has complied with IDG’s demands; that IDG has
a limited budget for its enforcement and litigation efforts; and that IDG will revisit
the issue of whether to commence litigation against these retailers if it prevails in
this Opposition.128
In addition, Applicants mention that IDG’s lawyers wrote to the Wisconsin Milk
Marketing Board requesting that “gruyere” not be used as the name for a cheese made

123 Id. at ¶ 16, 37 TTABVUE 7.
124 Id. at ¶ 26, 37 TTABVUE 9.
125 Id. at ¶ 18, 37 TTABVUE 8; Id., Exh. 6, 37 TTABVUE 50.
126 Id., 37 TTABVUE 104.
127 Id., 37 TTABVUE 115.
128 Id. at ¶ 27, 37 TTABVUE 9.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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in Wisconsin;129 that the Wisconsin Milk Marketing Board revised its website and no
longer uses “gruyere” as the name for a cheese made in Wisconsin;130 and that the
Ammerland Dairy Company in Germany changed the name of its cheese from
“Ammerlander Gruyère” to “Ammerlander Alpine,” and this name is now used in the
United States.131
Emmi Roth
Applicants point out that IDG successfully stopped Emmi Roth, “the largest and
only significant U.S. producer” of “domestic Gruyère” from using the term “gruyere”
on cheese sold under its own label and that it now uses GRAND CRU ORIGINAL,
GRAND CRU RESERVE, and GRAND CRU SURCHOIX as the names for the
cheeses it formerly called “domestic Gruyère.”132 With regard to Exhibit C to Mr.
Kunz’s Declaration, the spreadsheet, Applicants state that it says nothing about how
“the cheese was labelled when it was sold by retailers to consumers [and] Opposers
have no evidence to show how many pounds of ‘private label’ U.S.-made cheese were
sold to consumers bearing labels bearing the term ‘gruyere,’ as opposed to other
terms, such as ‘Alpine-Style cheese,’ ‘Mountain-Style cheese,’ or some other term.”133
Mr. Bardet admits, however, that Emmi Roth “continues to sell cheese in bulk to

129 Id., Exh. 6, 37 TTABVUE 61-62.
130 Applicants’ Notice of Reliance Exh. 16, 35 TTABVUE 31, referring to “Alpine Style” cheese.
131 Bardet Decl. ¶ 25, 37 TTABVUE 9; Applicants’ Notice of Reliance Exh. 18, 35 TTABVUE
35 (“This all natural cheese is a German take on the classic alpine Gruyere”) and Exh. 5, 37
TTABVUE 268.
132 Bardet Decl. at ¶ 17, 37 TTABVUE 7-8; Applicants’ Notice of Reliance Exh. 15, 35
TTABVUE 29.
133 Applicants’ brief at pp. 27-28, 47 TTABVUE 29-30.
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retailers and distributors, some of whom continue to label the cheese as
‘Gruyère’ ….”134
VI. Analysis
In evaluating the parties’ evidence, we begin with the reference materials in the
record including the dictionary definitions. In general, the dictionary entries for the
term “gruyere” submitted by Opposers are not restricted to a cheese produced in
France or Switzerland or even originating in France or Switzerland. The dictionary
evidence relied on by Applicants mentions that the cheese originated in Switzerland
or is named after a place in Switzerland, but does not limit the definition of “gruyere”
to cheese produced in France or Switzerland. The Oxford Companion To Cheese,
submitted by Applicants, states that GRUYERE is an AOC for cheese from
Switzerland; it does not mention France. The Cheese Lover’s Companion contains an
entry for “Gruyère (AOC)” but states, “[i]n America, Roth Käse USA Ltd., of Monroe,
Wisconsin, makes an award-winning version called Grand Cru Gruyere. … They
produce three versions of Gruyere ….”135 We find that the reference materials
describe a category of cheese that may be made anywhere and evoke the Swiss and
(occasionally) French origin of the cheese. Cf. Tea Bd. of India v. Republic of Tea Inc.,
80 USPQ2d 1881, 1895 (TTAB 2006) (“a number of the dictionaries reference
Darjeeling as the exclusive geographic source of tea from that region.”).

134 Bardet Decl. at ¶ 30, 37 TTABVUE 11-12.
135 Opposers’ Notice of Reliance Exh. 106, 28 TTABVUE 833.
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The record demonstrates that cheese identified as “gruyere” is made in many
locations including Germany, Austria and the United States. Those knowledgeable of
the World Championship Cheese Contest will know that non-Swiss and non-French
producers of cheese (along with Swiss or French producers) are listed as winners in
“gruyere” categories for each year for which there is evidence. In the United States,
Emmi Roth (and its predecessor company Roth Kase) has been the largest producer
of cheese labeled as “gruyere” for many years, with an annual production of millions
of pounds. Other smaller producers of cheese labeled as gruyere exist in the United
States.136
In 2012, Emmi Roth ceased labeling its American-produced cheese with the term
“gruyere,” but did not cease the production and sale of the cheese itself. Emmi Roth’s
discovery response indicates that it continues to produce millions of pounds per year
of “Domestic Private-Label branded Gruyere.”137 Applicants argue that Exhibit C to
Mr. Kunz’s Declaration says nothing about how “the cheese was labelled when it was
sold by retailers to consumers [and] Opposers have no evidence to show how many
pounds of ‘private label’ U.S.-made cheese were sold to consumers bearing labels
bearing the term ‘gruyere,’ as opposed to other terms, such as ‘Alpine-Style cheese,’
‘Mountain-Style cheese,’ or some other term.”138 Mr. Jaeckle testified, however, that
Emmi Roth produces cheese labeled as gruyere for Boars Head139 and Mr. Bardet

136 Jaeckle Depo. at p. 41, 32 TTABVUE 43.
137 Kunz Decl. ¶ 5, 22 TTABVUE 6; Kunz Decl. Exh. C, 22 TTABVUE 26.
138 Applicants’ brief at pp. 27-28, 47 TTABVUE 29-30.
139 Jaeckle Depo. at pp. 40-41, 32 TTABVUE 42-43.
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corroborated Mr. Jaeckle’s testimony, stating “Roth Cheese continues to sell cheese
in bulk to retailers and distributors, some of whom continue to label the cheese as
“Gruyère.”140 Mr. Gellert identified the major retailers of cheese labeled as “gruyere”
as “[e]very major retailer that you can imagine, Trader Joes, Costco, Wegmans, …
Publix, every major retailer. Sometimes you see them marketing under brands, their
own brands, manufacturer brands, sometimes under a group like Boars Head that
has their own brand often in retail.”141 The evidence reflects that major retailers
continue to sell Boar’s Head cheese labeled as “gruyere” produced by Emmi Roth in
the United States.142
In addition to Emmi Roth and the smaller producers of cheese labeled as “gruyere”
in the United States, there are non-Swiss and non-French foreign producers of cheese
labeled as “gruyere” that is sold in the United States. Mr. Gellert testified that
Opposer Atalanta imports and sells cheese labeled as “gruyere” sourced in Austria
(Austrian Alps brand), and Mr. Bardet acknowledged the same in his testimony.143
Mr. Gellert also stated that he has imported and sold cheese labeled as “gruyere” from
Ammerlander, a German company.144 The statistics from the U.S. Department of

140 Bardet Decl. at ¶ 30, 37 TTABVUE 11-12.
141 Gellert Depo. at p. 27, 31 TTABVUE 29.
142 Jaeckle Depo. at 34, 39-41, 32 TTABVUE 36, 41-43; Jaeckle Depo. Exh. 66, 36 TTABVUE
145-47. Opposers’ Second Notice of Reliance Exh. 161, 39 TTABVUE 7.
143 Bardet Decl. ¶ 30, 37 TTABVUE 11.
144 Gellert Depo. at pp. 15-16, 31 TTABVUE 17-18. Applicants maintain that Ammerlander
no longer uses the term “gruyere” and cite to Mr. Bardet’s statement at Paragraph 25 of his
declaration (37 TTABVUE 9) where he refers to a webpage printout from iGourmet.com
(“Specialty Cheeses • Fine Foods • Exquisite Gifts”) which states “Ammerlander Alpine[.]
This all natural cheese is a German take on the classic alpine Gruyere.” Applicants’ Notice
of Reliance Exh. 18, 35 TTABVUE 35. We do not entirely discount Mr. Gellert’s testimony
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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Agriculture reflect that between 1,000 – 2,000 metric tons of processed cheese labeled
as “gruyere” is imported into the United States145 and other evidence reflects that
processed cheese is offered for sale as “gruyere” in the United States. See label for
Red Apple Cheese reproduced above showing processed cheese labeled as “Gruyere
Cheese.”146
As noted above, Applicants have conducted a letter-writing campaign requesting
various retailers to cease using the term “gruyere” in connection with labels for cheese
not sourced in Switzerland or France.147 Opposer Atalanta received such a letter in
2012. Applicants sent four additional letters in 2014; the remainder are of more
recent vintage from 2016-2017, about when Opposers commenced this proceeding.
Mr. Bardet identified 21 retailers that have stopped using “Gruyère” for their private
label cheese as a result of these letters.”148 Applicants have not identified the volume
or market share of non-Swiss and non-French cheese privately labeled as “gruyere”
these retailers commanded. One major retailer, Trader Joes, to whom Applicants’
counsel sent a cease and desist letter, is notably absent from this group of retailers

based on Mr. Bardet’s statement, which appears to rely on a webpage from an internet cheese
merchant. If Ammerlander did stop using the term “gruyere” for its cheese, there is no
indication when it ceased such use.
145 Opposers’ Notice of Reliance Exh. 92, 28 TTABVUE 674.
146 https://www.redapplecheese.com/products/apple-smoked-cheese, Opposers’ Second Notice
of Reliance Exh. 164, 39 TTABVUE 16.
147 There is no indication in the record or Applicants’ brief as to why Applicants chose to send
letters to these retailers and not to others.
148 Bardet Decl. at ¶ 27, 37 TTABVUE 10.
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that have stopped selling non-Swiss and non-French cheese privately labeled as
“gruyere.”149 While Applicants’ counsel sent the following entities letters,
● Frank Brunckhorst150 ● Dairyfood USA, Inc.151
● Finlandia152 ● Foodworks/Food Distributors, Inc.153
● InterSource, Inc.154 ● Mandi Foods, Inc.155
● Ralph’s Supermarkets156 ● Red Apple157
● Trader Joe’s Company158 ● Atalanta159

149 Opposers’ Notice of Reliance Exh. 140, 28 TTABVUE 220-21.
150 Opposers’ Second Notice of Reliance Exh. 162, 39 TTABVUE 10 (“BLANC GRUE
GRUYERE CHEESE”); Opposers’ Corrected Notice of Reliance Exh. 129, 40 TTABVUE 162.
151 Id. at Exh. 120, 40 TTABVUE 114.
152 Id. at Exh. 126, 40 TTABVUE 149.
153 Id. at Exh. 128, 40 TTABVUE 158.
154 Id. at Exh. 130, 40 TTABVUE 166.
155 Opposers’ Second Notice of Reliance Exh. 163, 39 TTABVUE 13; Opposers’ Corrected
Notice of Reliance Exh. 133, 40 TTABVUE 179. Mr. Bardet states in his declaration (37
TTABVUE 9) that Mandi Foods, Inc. has stopped using “Gruyere” for its private label cheese
but Opposers’ evidence, dated after Mr. Bardet’s declaration, demonstrates that Mandi
continues to offer non-Swiss or non-French cheese labeled as “gruyere.’
156 Opposers’ Second Notice of Reliance Exh. 161, 39 TTABVUE 7. Mr. Bardet states in his
declaration (37 TTABVUE 9) that Ralph’s Supermarkets has stopped using “Gruyere” for its
private label cheese. An email dated January 23, 2017 from Sam E. Iverson of Pillsbury
Winthrop Shaw Pittman LLP states, “We write in response to your letter … to Ralphs
Grocery Company, attached. While we do not concede your claims, Ralphs is in the process
of changing its product labeling and signage to remove the word GRUYERE from domestic
cheese, as requested …. We trust that this will resolve the matter.” Bardet Decl. Exh. 6, 37
TTABVUE 173. Opposers’ evidence, dated after Mr. Bardet’s Declaration, demonstrates that
Ralph’s continues to offer non-Swiss or non-French cheese labeled as “gruyere.”
157 Opposers’ Second Notice of Reliance Exh. 164, 39 TTABVUE 16; Opposers’ Corrected
Notice of Reliance Exh. 119, 40 TTABVUE 111.
158 Id. at Exh. 140, 40 TTABVUE 220.
159 Gellert Depo. at pp. 22-24, 31 TTABVUE 24-25.
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there is no uncontroverted evidence establishing that they have stopped using the
term “gruyere” in connection with non-Swiss or non-French cheese. Opposers’ website
evidence — particularly that submitted with its Second Notice of Reliance — depicts
non-Swiss and non-French cheese labeled as “gruyere” offered for sale in the United
States: Red Apple Gruyere, Boar’s Head Gruyere Cheese, Murry’s Gruyere, Boar’s
Head Smoked Gruyere Cheese, Murray’s Cave Aged Gruyere and Boar ’s Head
Hickory Smoked Gruyere Cheese.160 Thus, while Applicants may have had some
success with certain retailers, there is ample evidence that many others exist and
continue to sell non-Swiss and non-French cheese labeled as “gruyere” in the United
States. The fact that some have changed the names of their products or removed the
term “gruyere” from marketing materials or a webpage fails to persuade us that the
public in the United States would not primarily understand “gruyere” to refer to a
type of cheese regardless of its country of origin or any particular certification
standards. See In re Hikari Sales USA, Inc., 2019 USPQ2d 111514, at *9-10 (TTAB
2019) (“Also, the fact that some of these competitors changed the names of their
products or removed the term from marketing materials or a webpage does not
convince us that the term functions as Applicants’ trademark or that the public would
not primarily understand ‘Algae Wafers’ to refer to a type of fish food.”) (citing In re
Wella Corp., 565 F.2d 143, 196 USPQ 7, 8 n.2 (CCPA 1977) (evidence that competitors
may have agreed to discontinue use of a term upon threat of legal action shows a
desire by those competitors to avoid litigation, rather than distinctiveness of the

160 Opposers’ Second Notice of Reliance Exh. 161, 39 TTABVUE 7.
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term); In re Volvo White Truck Corp., 16 USPQ2d 1417, 1421 (TTAB 1990)
(recognizing that competitors may stop using a term to avoid a costly lawsuit rather
than because they recognize the term as a trademark, particularly if there were other
terms which they could use); In re Consolidated Cigar, 13 USPQ2d at 1483 (finding
similar evidence of competitor use probative and finding evidence that three out of
four competitors agreed to discontinue use as showing merely a desire to avoid
litigation rather than acknowledgement of distinctiveness of the term “whiffs”)).
We turn now to the media and Internet references to “gruyere.” We find that the
uses of “gruyere,” “gruyere cheese” and “Wisconsin gruyere” reflect use of “gruyere”
to identify a category of cheese that can come from anywhere and are not persuaded
by Applicants’ arguments to the contrary.161 Specifically, Applicants argue that the
media references are brief “snippets” and have little value, citing a non-precedential
Board decision162 involving a refusal under Section 2(d) of the Trademark Act, 15

161 Opposers’ Notice of Reliance, Exhs. 89-90, 28 TTABVUE 583-673; “Letter of Protest
Memorandum,” May 10, 2016 TSDR. The “Letter of Protest Memorandum” is automatically
part of the record in this proceeding as it forms a part of the prosecution file for Applicants’
application. See Trademark Rule 2.122(b).
Applicants have objected to Exhibits 89-90 on the basis of hearsay. We do not consider the
substance of the media and Internet references to “gruyere” for the truth of any assertion
therein but rather as evidence of public exposure to use of the term generically. Applicants’
hearsay objection is therefore moot.
162 Although parties are permitted to cite to any Board decision, citation to non-precedential
decisions is not encouraged and such decisions are not binding on the Board. See In re Soc’y
of Health & Physical Educators, 127 USPQ2d 1584, 1587 n.7 (TTAB 2018) (“Board decisions
which are not designated as precedent are not binding on the Board, but may be cited and
considered for whatever persuasive value they may hold.”); In re Morrison & Foerster LLP,
110 USPQ2d 1423, 1427, n.6 (TTAB 2014) (“Although parties may cite to non-precedential
decisions, the Board does not encourage the practice.”); In re Luxuria s.r.o., 100 USPQ2d
1146, 1151 n.7 (TTAB 2011) (parties may cite to non-precedential decisions, but they are not
binding on the Board and because they have no precedential effect, the Board generally will
not discuss them in other decisions).
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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U.S.C. § 1052(d), discussing Google search result summaries.163 The excerpts are not
search engine results and they provide sufficient text and context for us to evaluate
how consumers would perceive the uses of the term “gruyere.” Applicants also
maintain that references to “gruyere” in lower case letters does not necessarily mean
that “genuine” gruyere cheese is not discussed or called for such as in recipes.164 We
find that the uses of “gruyere” without capitalization are references to a type of cheese
of any geographic origin, including cheeses not made in Switzerland or France, and
hence evidence use of “gruyere” to identify a type of cheese. See Hikari Sales USA,
2019 USPQ2d 111514 at *9 (“The Google search results showing use of “algae wafers”
by consumers on website forums have sufficient context and reflect generic use of the
term as they are in lower case letters and are used to reference fish food generally.”);
Frito-Lay N. Am., Inc. v. Princeton Vanguard, LLC, 124 USPQ2d 1184, 1190, 1193
(TTAB 2017) (lower case references to “pretzel crisps” with no apparent reference to
the term as a brand or to the applicant indicate an understanding by the relevant
public that the term refers to a genus of a product rather than a single producer); Tea
Bd. of India, 80 USPQ2d at 1896 (“Applicant has not pointed to, nor have we seen, a
single instance of use of Darjeeling in a lower case letter ‘D’ which may signify use in
the manner of a generic designation.”); Cooperative Produttori Latte E Fontina Valle
D’Aosta, 230 USPQ at 134 (“Rather, the lower-case treatment of this word by the
references to name a kind of cheese with certain hardness, texture and flavor

163 Applicants’ brief at p. 39, 47 TTABVUE 41.
164 Id.
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characteristics, and the fact that the record reveals that there is a domestic fontina
cheese demonstrates to us that, to the American purchaser, ‘fontina’ primarily
signifies a type of cheese (much like brie, swiss, parmesan or mozzarella) regardless
of regional origin, rather than a mark of certification.”).165 Cf. Zimmerman v. Nat’l.
Assoc. of Realtors, 70 USPQ2d 1425, 1434 (TTAB 2004) (“‘Realtor’ is capitalized and
used in a manner consistent with respondent ’s position that this term functions as
an identifier for its members, not as a generic designation for all real estate agents”).
In addition, Applicants’ challenge to the probity of the recipes because they do not
recite the geographic origin of “gruyere” is not well-taken. See Luxco, 121 USPQ2d at
1490 (“there is no evidence that recipes typically recite the geographic origin of the
ingredients comprising the recipe.”).
Applicants also suggest that some of Opposers’ evidence is “old,” mentioning, inter
alia, Exhibit 93 to Opposers’ Notice of Reliance, which bears a 2016 date.166 We find
that Opposers’ evidence, including the excerpts from media stories dating back to
2010, have probative value on the question of genericness. See In re Trek 2000 Int’l.
Ltd., 97 USPQ2d 1106 (TTAB 2010) (noting a lack of evidence that competitors had
used THUMBDRIVE generically over ten years). Applicants would have us find that
their recent efforts, including the letter-writing campaign and attempts to directly

165 The record is silent as to whether Applicants sought to inform the media of their
preferences on media uses of the term “gruyere.”
166 Opposers’ Notice of Reliance Exh. 93, 28 TTABVUE 682-92.
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educate the consuming public,167 have changed consumer understanding of the term
“gruyere” as a category of cheese that can come from anywhere in just a few years,
with little direct education of the consuming public. Without evidence, we are not
persuaded that such a limited campaign could change consumer perception so
quickly.168 Further, it was not until 2011 when the European Union recognized the
Protected Designation of Origin, and it was not until 2012 when the French National
Institute of Origin and Quality approved GRUYÈRE as a “protected geographical
indication” for a limited area in France.169
We next turn to 21 C.F.R. § 133.149, the FDA standard of identity for “gruyere
cheese,” which identifies the ingredients and the production standards for any cheese
labeled as a “gruyere cheese” but does not limit the cheese to a particular geographic
source. The standard states that “the name of the food is ‘gruyere cheese.’” Applicants
argue that Opposers have presented “no evidence that the public is aware of the text
of this FDA regulation, and thus the regulation could not have any impact on the
public’s understanding of the mark GRUYÈRE.”170
Section 133.10 of 21 C.F.R., of which 21 C.F.R. § 133.149 is a subsection, is titled
“Notice to manufacturers, packers, and distributors of pasteurized blended cheese,

167 In this regard, we note Mr. Bardet’s testimony concerning, inter alia, his visits to retail
stores that sell GRUYÉRE cheese, his talks to retailers and consumers and IDG-sponsored
talks about recipes featuring GRUYÉRE cheese. Bardet Decl. ¶¶ 13-16, 37 TTABVUE 6-7.
168 Cf. Royal Crown, 127 USPQ2d at 1049, concerning a survey taken more than five years
prior to trial as evidence of acquired distinctiveness (but not genericness).
169 Lehmann Decl. ¶ 17, 36 TTABVUE 27; Guittard Decl. ¶ 6, 36 TTABVUE 3.
170 Applicants’ brief at 32, 47 TTABVUE 34.
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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pasteurized process cheese, cheese food, cheese spread, and related foods” and states
in relevant part as follows:
(a) Definitions and standards of identity have recently been
promulgated under the authority of the Federal Food,
Drug, and Cosmetic Act for a number of foods made in part
from cheese, including pasteurized process cheese;
pasteurized process cheese with fruits, vegetables, or
meats; pasteurized blended cheese; pasteurized process
cheese food; pasteurized process cheese spread, and related
foods. These standards prescribe the name for each
such food. The act requires that this name appear on
the label. … (emphasis added.)
Sections 133.10 and 133.149 are probative on the question of genericness of the
term “gruyere” because they inform manufacturers, packers, and distributors of the
name to be placed on labels for cheeses having certain characteristics. They explain
when and under what circumstances cheese for sale in the United States, especially
cheese produced domestically, may be labeled “gruyere” and offered as such to the
purchasing public. While we agree with Applicants that the ultimate consumers of
cheese likely do not know of these regulations, consumers are affected by the
regulations because they govern the labels that consumers see in stores, advertising
and on webpages. Case law recognizes that administrative regulations have a bearing
on the question of genericness. See Institut National Des Appellations D’Origine v.
Vintners Int’l Co., 958 F.2d 1574, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992) (finding the
term “chablis” generic, stating “[s]upport for this ‘generic’ determination is found in
… BATF regulations” and stating “[t]he BATF regulations … actually lend support
to the argument that the term is generic. The BATF regulations define ‘Chablis’ as a
‘semi-generic’ term which is a name of geographic significance and also the
Opposition Nos. 91232427, 91232442, 91232446 and 91232448
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designation of a class or type of wine.”); Luxco, 121 USPQ2d at 1485 (stating that
TTB regulations “are probative in determining whether a term is distinctive or
generic.”).
The regulations do not offer any alternative terms for “gruyere” including those
terms Applicants proposed to retailers in their cease and desist letters (alpine cheese,
mountain cheese). Cf. 21 C.F.R. § 133.184 titled “Roquefort cheese, sheep’s mild blue-
mold, and blue-mold cheese from sheep’s milk,” stating “(c) Nomenclature. The name
of the food is ‘roquefort cheese’, or alternatively, ‘sheep’s milk blue-mold cheese’ or
‘blue-mold cheese from sheep’s milk”; Community of Roquefort v. William
Faehndrich, Inc., 303 F.2d 494, 133 USPQ 633, 633 (2d Cir. 1962) (“The Community
of Roquefort … a municipality in France, is the holder of a certification mark
‘Roquefort’ for cheese, which is registered in the United States Patent Office ….”).171
Applicants maintain that the probative value of the FDA regulation is limited in
view of Pom Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 110 USPQ2d 1877, 1884
(2014), in which “the Supreme Court noted the FDA’s limited ‘perspective or expertise
in assessing market dynamics.’”172 The argument misses the mark because the

171 Applicants state, “Indeed … the USPTO has registered ROQUEFORT as a certification
mark even though ‘Roquefort,’ like ‘Gruyere,’ is subject to an FDA standard. See 21 C.F.R.
§ 133.184; Cmty. of Roquefort v. William Faehndrich, Inc., 131 U.S.P.Q. 435, 436-37 (S.D.N.Y.
1961) (ROQUEFORT indicates geographic source and methods for production and
manufacture associated with that region).” Applicants’ brief at pp. 31-32, 47 TTABVUE 33-
34. The cited standard does not compel non-French producers to use “roquefort” but offers
them alternatives to use as the name of the goods. As noted, the regulation for “gruyere” does
not do the same.
172 Id.
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regulation here has nothing to do with market dynamics; it concerns a label for a type
of cheese directed to manufacturers, packers and distributors.
Applicants also point out that Opposers have not submitted a survey. Because this
case does not present a situation involving a coined or arbitrary mark but rather
involves the longtime name of a type of cheese, a survey is not necessary. See Hikari
Sales USA, 2019 USPQ2d 111514 at *11. Moreover, the evidence in the record
adduced by Opposers is sufficiently persuasive that it obviates any need for a survey.
See Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397, 64 USPQ2d 1761, 1767
(6th Cir. 2002) (“Thus, the overwhelming evidence in this case obviates the need for
[defendant] to have conducted a consumer survey.”).
Applicants also argue that “[i]f the record as a whole leaves the Board in doubt as
to whether the term is generic, the Board is ‘constrained to resolve that doubt in favor
of applicant,’” citing In re Trek 2000 Int’l Ltd., 97 USPQ2d 1106 (TTAB 2010).173 The
Trek case was an ex parte appeal of a refusal to register, where the Board resolves
reasonable doubt as to whether an applied-for mark is generic based on the record
evidence in favor of the applicant “on the theory that any person who believes that he
would be damaged by the registration will have an opportunity … to oppose the
registration of the mark and to present evidence, usually not present in the ex parte
application, to that effect.” In re Gourmet Bakers, Inc., 173 USPQ 565 (TTAB 1972);
see also In re DNI Holdings Ltd., 77 USPQ2d 1435, 1437 (TTAB 2005). Here, we have
a record developed in an inter partes trial proceeding, where Opposers bear the

173 Id. at pp. 22-23, 47 TTABVUE 24-25.
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burden of proving genericness by a preponderance of the evidence. Princeton
Vanguard, 114 USPQ2d at 1830. There is no resolution of doubt in an applicant’s
favor in an opposition proceeding. In any event, we have no doubt as to our
determination on the question of genericness in this case.
VII. Conclusion on Genericness
After carefully considering all of the arguments and evidence of record, we find
that purchasers and consumers of cheese understand the term “gruyere” as a
designation that primarily refers to a category within the genus of cheese that can
come from anywhere. Marvin Ginn, 228 USPQ at 530.174
Decision: Opposition Nos. 91232442, 91232446 and 91232448 to the registration
of Applicants’ proposed mark GRUYERE are sustained on the ground of genericness.
Opposition No. 91232427 is dismissed on both claims for lack of standing.

174 Because Opposers have prevailed on their claim of genericness, we need not consider their
claim pertaining to a lack of control.