On Dec. 15, 2021, a U.S. district judge ruled that American fromagers are allowed to make gruyere cheese, despite the product’s Swiss pedigree. A week later, Japan became the 44th country to formally recognize Tennessee whiskey as a “distinctive product” of the United States. These aren’t just names, they’re intellectual property. But just as trade deals are helping to proliferate these geographical indications (GIs) around the world, the judge’s ruling on gruyere suggests that, for many of them, trade may also be their Achilles’s heel.
The battle over gruyere cheese has been heating up for years. In 2020, U.S. dairy claimed a victory when gruyere was denied trademark protection. Swiss vendors wanted American fromagers to call their product “Alpine cheese,” arguing that real gruyere can only be had from Switzerland. Well, not quite. The production of gruyere reached across the French border long ago, and since the early 2010s, Brussels has recognized it as being from both Switzerland and France. Yet, Austria, the Netherlands and Germany, among a host of other European countries, also make the stuff. So, too, do Egypt and Tunisia.
The U.S. district judge, like the U.S. Patent and Trademark Office, considered the cheese’s provenance at length, but concluded that “the term gruyere, through the process of genericide, has become generic….”
Data reveal that consumers do not make the link between gruyere and Switzerland or France. Or with anywhere else, for that matter. But how many GIs would consumers get right? How many know, for example, that cheddar actually goes by the name “West Country Farmhouse Cheddar,” dates to the 15th century and is claimed as a GI by the United Kingdom?
The judge also found that “decades of importation, production, and sale of cheese” has “eroded the meaning” of gruyere “and rendered it generic.” Then what to do about feta? Denmark actually makes more of it than Greece. Gorgonzola and asiago? Both are embroiled in trademark litigation. Yet, all of these cheeses are protected under European Union trade deals, which is where the real action is: third markets.
The story of Tennessee whiskey also involves trade deals. In 2016, the United States trade representative wrote to confirm that Japan would vow that bourbon and Tennessee whiskies could only come from the U.S.. That process took five years, hence the announcement in December. But what exactly is Tennessee whiskey?
Bill 1084, approved by the Tennessee House of Representatives in May 2013, gives a legal definition. Of the seven criteria offered, only one distinguishes Tennessee whiskey from bourbon: “Filtered through maple charcoal prior to aging.” This is the so-called “Lincoln County Process,” and is used to mellow the whiskey. But not all Tennessee distillers do this, so after a lengthy fight, an exception was made for Pritchard’s, which doesn’t use charcoal. Ironically, the one distiller in Lincoln County doesn’t do the Lincoln process, but still gets to call its product Tennessee whiskey, even though this is the only criterion that distinguishes it from bourbon. How’s that for a GI?
The story gets better. A year before Bill 1084, Korea agreed to recognize Tennessee whiskey under the U.S.-Korea trade deal. Korea, like Japan, surely reasoned that, in granting bourbon, Tennessee whiskey cost little more than giving a nod to George Dickel and Jack Daniel’s. But does this mean that Tennessee whiskey, with its exception, is too narrowly construed?
At least gruyere and Tennessee whiskey aren’t defined to include their packaging. In 2006, for example, Spain tinkered with the legal definition of Catalan wines to compel vineyards to use natural cork stoppers, rather than screw caps or synthetic stoppers. New regulations on Penedes wines also recommend, but don’t require, the use of natural cork over synthetic stoppers. Watch for more GIs to get creative like this.
The ruling on gruyere has been appealed. In deciding whether the gruyere is now generic, the next court will also have to weigh consumer perceptions and “decades of importation.” Trade policy influences both. And that’s one of the takeaways from the gruyere ruling: Trade pushes GIs across the global economy, but in many cases, trade also contributes to the process of genericide.
Marc L. Busch is the Karl F. Landegger Professor of International Business Diplomacy at the Walsh School of Foreign Service, Georgetown University. Follow him on Twitter @marclbusch.