Why Gruyère Is Now Just Another Cheese

comes from the Gruyer region of Switzerland and France. A federal appeals court has ruled that, like Feda Monster or Parmesan, Gruyer can be produced anywhere and sold as Gruyere here in the United States. Joining me is an expert in trademark law, Professor Willigene McLean of the University of Connecticut Law School. This case came about because groups representing cheese producers from Switzerland and France were asked the US Patent and Trademark Office for a mark that would restrict the

use of Gruyere to cheese from the Gruyer region. Tell us about that, So what they're looking for is to get what's known as a certification mark, which is a form of trademark. And what a certification mark does is show compliance with a set of standards. So like the underwriter's lab mark, it's not used by the owner itself.

It's used on products made by others saying this product was made according to our standards and therefore it gets the seal of approval that it emanated from the Gruyer region, which is in France end Switzerland. And the Fourth Circuit ruled that the term Gruyer is generic as a matter of law. What significance is that? So a term that is generic can never function as a trademark because it's

a term that is needed by all to use. For example, you can't get a trademark just for bank for financial services because other financial services need to be able to use the term bank. So the question that gets asked, and this is a simple form of determining whether or not a term is generic, is to ask who are you? What are you? If the answer to who are you is where do you come from? You come from La Gruere in Switzerland, then it operates as a mark if it answers what are you? I e. What are you

griere cheese? Then it generic? And so what the court was looking at is the question what the primary significance of the term greer is to the consumer? Right? Does it describe the type of product rather than the producer. If it's the type of product, Dennis, generic should be out there for any cheesemaker who makes it, according to

the FDA regulations, to say here is greer cheese. In its opinion, the court went through the history of gruyere to determine how cheese consumers in the US think of it. You know, they basically think of it as that a type of cheese that has a particular flavor in A part of the problem, I think is that the French and swissmakers didn't police the use of the term gruyere

well enough. And so if it's been sold in the US since nineteen eighty seven, it was only in twenty twelve when they woke up and said, oh, maybe we better start saying gruyere can only come from this specific region, you know, and by that time the horses out of the proverbial barn. They never challenged the FDA designation of what gruyer was. That was in nineteen seventy seven, so they let too much time elapse. I think that's part

of their problem. The French and Swiss groups also complained that the case was decided the summary judgment stage and those opposing the geographic indicator hadn't submitted a consumer survey into evidence, and the court said this argument slices the cheese too thinly. Did the court make this decision without any consumer surveys? Is that unusual? So that's an interesting question. When I teach my class, I say, consumer survey, consumer survey,

consumer survey. But there are precedents. There are cases in which they say consumer surveys are great. But if you have overwhelming evidence that the term is generic, we don't necessarily need a consumer survey, and the consumer survey wouldn't necessarily have changed the result. There are other ways in which evidence can be produced as to whether or not a term is generic. How is it used in the press, Does it appear in a dictionary? To give an idea

of how the general public views the term. The French and Swiss groups said they've been as you mentioned, they started this about twenty ten, and they said they're going to still continue efforts to protect the Gruyeer name, vigorously continue efforts to protect the Gruyer name. Is there any thing else they can do besides try to get the Supreme Court to look at this? They can try to get the Supreme Court to look at this. I be

surprised at the Supreme Court took this case. You know, that's the next level right would be to take it to the Supreme Court. I think they have a hard road to home. The US Patent and Trademark Office and the District Court judge ruled the same way as the Fourth Circuit. So this was sort of an expected decision that the Fourth Circuit didn't do anything crazy here. I don't think the Fourth Circuit did anything crazy. Now. You know, the District Court got this on appeal from the trademark

Trial on appeal board. And one of the things that the District Court has to do, according to the Fourth Circuit, is to look at all the evidence afresh from the beginning denovo and so it gave little deference to what the treatmark trialappuel Board decided, and so it took everything that the parties brought. They had more evidentiary information, and they came up with Yes, the ttabes right, this is generic. The question comes to the Fourth Circuit. They look at

what the District Court did. There were a couple of things that they said, you know, the District Court should not have done, but on the whole it was a reasonable decision, and the Fourth Circuit said, it's widely considered among the greatest of all cheeses according to the Oxford Companion to Cheese. It's for Companion to Cheese, saying that it's widely considered among the greatest of all cheeses. It's widely considered among the greatest of all cheeses, according to

The Oxford Companion to Cheese. Thanks so much, Willa Jean. That's Professor Willa Jean McClean of the University of Connecticut Law School. Tiger Woods is calling the woman suing him for thirty million dollars just a jilted ex girlfriend. Erica Herman, claims Woods tricked her into leaving the home they lived in together for six years, and claims she still had five years left to stay due to an oral agreement,

but Wood says there's no such oral tenancy agreement. To add to the legal complications, Herman is attempting to break out of the non disclosure agreement she signed in twenty seventeen when she began dating Woods, claiming it's unenforceable under a federal law that nullifies NDAs if there are matters involving sexual assault or harassment. Joining me Dominic Romano and Daniel Braverman of Romano Law Dominic, what do we know about the NDA? All we know about the NDA is

that there's an arbitration clause. The reason that's all we know about the NBA is because the entire confidentiality agreement has been redacted save for the arbitration clause. Do we assume she wants to get out of the NDA because it requires confidential arbitration in all disputes between the parties? Exactly. That's the stated reason. Anyway, Let's talk about why her lawyer says that agreement is invalid. They're using four grounds.

They're saying that the court should grant a declaratory judgment invalidating the NBA for two reasons. The first reason is there wasn't sufficient consideration and because it's unconscionable. The second reason is because the scope of the NBA is overbroad. But the third and the fourth reasons are the ones

that raise eyebrows. They're saying that the NDA is unenforceable in this case because it calls for an arbitrator to decide the dispute under the Federal Ending Forest Arbitration of Sexual Assault and Sexual Harassment Act of twenty twenty one. And the fourth and final reason, they're saying that the Woods NBA is not enforceable in this case, interestingly under the Federal Speak Out Act, which invalidates nbas where there are claims of or allegations of sexual harassment and sexual

assault in a civil cover sheet. Her attorney indicated no when asked if the case involves allegations of sexual assault. Did you see anything in the papers that made allegations of sexual assault or harassment? No? And that's the curious thing about this filing. The original lawsuit was over an oral tendency agreement filed Martin County in Florida. The original filing made no mention and had no allegation of sexual

assault sexual harassment. It seems as though, in response to the motion to come how arbitration, they are now arriving at this avenue interesting legal tactic of the sexual assault and sexual harassment angle as a way of overturning not only the forest arbitrations, but also the NBA itself and its entirety. Dan tell us about the oral tendency agreement. She's claning they had, you know, they had a relationship.

From claim she was promised that she would have a tendency in his home and that that period of time was five years that already took place, and that there's another six years that she's entitled to live in that home. So she's a plaining that's totally oral. There's nothing in writing. She hasn't produced any type of documentation. And what we find interesting obviously is that obviously when there was a need to enter into a nondisclosure agreement or an arbitration agreement,

that's clearly in writing. So it does seem, at least in my opinion, seems interesting that if someone's going to enter into a tendency agreement, almost like a last to agree to lit someone live in your house for a very long period of time, you would expect there would be some type of writing that would reflect that. But this is an oral agreement that she's claiming exists, and she's claiming that she was forced out of this home

in violation that oral agreement at trial. Let's say this gets to trial and it's not settled other than as he said, she said situation, are there other ways that she could prove an oral tendency? You know, we deal with this a lot, and an oral contract can sometimes be just as valid as a written contract. What you'd have to do is you'd have to testify, and obviously we see this all the time. Some people are more

credible than others, so it'll be under oath testimony. In addition, you may have witnesses and maybe people that you told about this tendency, or maybe that, assuming it did exist, that Tiger Woods might have stated it to someone else, So there might be other people that potentially could come forward.

But as you point out with your question, obviously much much easier to prove a tendency agreement, or any type of agreements for that matter, to have something writing, whether the text, email, some type of written communication, And as of now, that doesn't seem to exist, because I would be shocked if that did exist. Why would not be in a complaint that was filed? The damage is there an eye popping thirty million dollars based on the rental value of that property. What kind of property is that?

I don't know. Yeah, well, I'm sure it's a use home, I'll put it that much. But I mean, she's obviously claiming that the value of six years would be five million dollars per year, and that by her being removed from the home, that she should be entitled to five million dollars for each year that you know she would have otherwise been in that home. I agree, it's an eye popping number. I'm not sure if that was done purposely. Obviously,

that's what's grabbing everyone's attention. But in the statue that does allow for on the Florida law, you know, for certain types of damages if you're wrongfully excluded from from your residence. Herman claims that Wood's used premeditated, prohibited practices and trickery to get her to leave the mansion. Wood says that he arranged for her to stay at a local luxury resort and provided funds she could apply toward a new residence. So does it matter under Florida law?

I think generally the answer is probably not. It's not a tremendous amount of a difference. But obviously, if you were on the fence as to whether or not somebody was you know, wrongfully excuted from the home or kicked out of their house without proper procedure. The more interesting, I'll put it that way, the facts that are alleged with how that was done, I think it might help persuade a judge or jury or you know, an arbitrator

that you were wrongfully treated in this matter. Here as we knows, what we've been reading is apparently I think the claim is that she was told she was going on a vacation or some type of trip which got out of pat bags, probably sufficient to be out of the home for a period of time, and once she was out, she was told that the relationship was over

and that she was no longer welcome. Do you think the likelihood of this is a settlement that this is done to perhaps negotiations fell through and the latest is intended to drive up the settlement numbers, you know, larger?

Two things on that point. Number one, I wonder whether this entire dispute could have been would have been avoided if a different method had been used at the outside, you know, had she not been basically accosted of the airport a couple of his people, according to reports, then told she's barred from re entering a place where she'd

lived for a number of years. If this might have been resolved privately and confidentially at that point and at this point, it's highly likely in my view that this entire initiative, the objective, the endgame here is to expedite the inevitable settlement that is highly likely to occur here. I agree, I do. I think it's also important to

look at, like the procedural history of this matter. You know, the complaint initially was filed when she was removed from the home in October twenty twenty two, and if you look at that complaint, it's an all tendency agreement. I mean, the goal here was she was suing because she believed she was entitled to be in that home for another six years, and she was suing for thirty million dollars.

There was no suggestion of any other wrongdoing et cetera, allygames and etc. After she filed that complaint, would his

team files for arbitration. It's saying that the nondisclosures enforceable, and more importantly or equally importantly, all her claims have to be an arbitration, and then after that was filed, then she followed a new claim which was just filed earlier this month, which was trying to get the NDA declared unenforceable, as well as a ruling that the matter isn't arbitrable under those two laws that dominant excited earlier, which is under the Speak Out Act, etc. And the

end of forced arbitration. But what's interesting about it is when you look at the new lawsuit, that new lawsuit, although there aren't specific allegations, just the mere fact that it mentions potential allegations, or at least if you're bringing a lawsuit to have something invalidated under a law that only allows you to invalidate it, if you're making sexual or assement of sexual assault allegations, it makes someone wonder do you have those allegations? It just makes you question that.

I think that threat or that concern, as well as the publicity of it, might be enough to make someone want to resolve the suit, whether they did anything wrong or not. So I think that's that's an important point that I see from the procedural history that we've seen

in this matter. And June I would add to that, not only to resolve the dispute and an expedited matter, probably with a higher settlement that might have originally and agreed upon had these claims, these additional claims not been made because they present a greater reputational hazard to the celebrity. Where does the six years come from? My best guess is it may be related to the age of one

of the children. It seems like an odd number, not ten years, not five, not fifteen, But eleven is what was claimed, and that's where there's five years left, and where we get the six million a year value from by deduction. But it's not specifically explained in the pleadings why this alleged oral tenancy was for eleven years. Interestingly, she's claiming value of the entire residence, but she didn't

live there alone. She lived there obviously with him, and as we understand it, according to reports, two of his children. So arguably, I guess the thirty million could be a lot more, a lot less. So the thirty million just for her portion of the residence, of course, for the entire residence. Yeah, it's unclear whether it's a partial or full tendency of the entire estate. According to Zillo, the Florida estate is worth forty five point eight million dollars.

So here's the bigger question, how does a rich person get out of a live in relationship? Here? He had the NDA so that there would be arbitration. She's trying to get around that. So what does a rich person do if he or she wants to have a live in relationship? Choose very carefully who your partner is. These are brand new laws, relatively news. So the first pot, the fourced arbitration Law, only became active in March of twenty twenty two, so it hasn't even been a full year.

The Speak Out Act, which was passed unanimously in the Senate and I think over three hundred and fifty votes in the House, that only came into play December, like less than four or four months ago. So you know, it's going to be interesting the way courts interpret these forced arbitration sections and also the validity of these nbas when there are even mere allegations of sexual harassment, let

alone assault. And I'll just say I think also, and you know I always think about this in my decades and decades of employment law, is that whenever the same way when you terminate an employment relationship, you want to do it with dignity. You want to do treat someone with respect. We don't know exactly what happened here, but obviously the allegations of how the relationship ended, and the alleged trickery of having a person believe they're going on a trip only to find out that that trip is

not on a nice vacation. It's you know, it's it's a permanent removal from from where you're currently you've been, where you've been living for the last you know, five or six years. I think the way things are done also can help, you know, alleviate or try to avoid situations where you get into you know, people might take things a lot more personally rather than you know, view it a little differently. Thanks for being the Bloomberg Law Show.

That's Dominic Romano and Daniel Braverman of Romano Law. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple pod Casts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into the Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg