Tyler Nottberg’s Washington Post op-ed on the recent decision by the 4th Circuit Court of Appeals that ruled that “gruyere” was a generic term for a type of cheese pushed a number of buttons on things interesting to me. Among them are cheese, Americans making bad assumptions, Europeans making bad assumptions, and our system of common law. Here’s his main complaint:
The judges affirmed a district court ruling that the â€œgruyereâ€ label cannot be trademarked. Americans have voted with our wallets in favor of generic cheese by purchasing more ersatz domestic â€œgruyereâ€ than we buy of the authentic Swiss stuff.
Having experienced the region, the people and the product in its native setting, Brooks and I believe the 4th Circuit has used runny logic. This is a loss of something important â€” perhaps not as bad as Velveeta claiming to be cheese; more like a cover band claiming to be the Rolling Stones. Perhaps I feel so strongly because I lead a business that has been in my family for more than 125 years. A brand to me is more than a word or logo on shrink-wrap; it is the passion, sweat and culture of people who give their best to burnish it from generation to generation. Those who seek the real GruyÃ¨re will find it not by its label but by the love on that Swiss mountainside. Itâ€™s worth the trip.
Why is cheese interesting to me? First of all, I like cheese. My mom once observed that members of our family could probably live happily on a diet consisting only of bread, cheese, and apples. I think we come by it honestly. My Swiss ancestors were milk brokers and had been for, probably, most of the last millennium. What do milk brokers do with the milk they don’t sell? I suspect they use it to make cheese.
What bad assumption is Mr. Nottberg, an American, making? Like most Americans he is apparently unaware that there is no robust international system of civil law. European laws mean next to nothing in the United States. What bad assumptions are the Europeans making? They didn’t adopt their “protected designation of origin” regime until 1992. If they think that at that late date that Americans will change every name of every thing that uses a place name to conform to their new laws, they don’t know us very well.
What things have place names?
That’s just off the top of my head and that’s just a bare beginning. I could probably come up with hundreds more.
What relevance does all of that have to our system of common law? Under the common law you can’t copyright terms that are in common usage. That makes sense. Otherwise you’d have people trying to copyright everything forever. By and large European countries have a civil code system of law. A law could be enacted allowing a company to copyright “fire” or “wheel” and the courts would happily enforce it.