Pushing Many Buttons

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 “gruyere” label cannot be trademarked. Americans have voted with our wallets in favor of generic cheese by purchasing more ersatz domestic “gruyere” 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 — 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 Gruyère will find it not by its label but by the love on that Swiss mountainside. It’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?

Cheddar cheese
Swiss cheese

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.

10 comments… add one
  • steve Link

    What about American cheese?


  • You’re right. But I try to avoid thinking about American cheese. I don’t believe I’ve ever bought it. And this from a guy whose mom had Cheez-Whiz in the cupboard when he was a kid (until I was 9 and she discovered Adele Davis).

  • Janis Link

    My husband wouldn’t eat cheese save for the occasional sprinkle of Parmesan. He’d grown up on too many Velveeta casseroles.

  • bob sykes Link

    You realize, of course, that the True Philly Cheese Steak, the one’s you get in the hole-in-the-wall take-outs in Philly, are made with Velveeta, precisely because it gets all gooey and melty.

    Anyway, wasn’t this all hashed out for wine names decades ago when Europe passed its provenance regulations?

  • I think the French adopted the appellation system in the 1930s. The horse had already bolted by then. We were going to call practically any sparkling wine “champagne”. New York, California, and Missouri had been producing “champagne” for almost 50 years by the time the French thought of their system.

  • Andy Link

    This is a good Planet Money episode about Trademark law and Ugg boots that I think is relevant here:


  • steve Link

    I think they stopped making American cheese out of petroleum so its probably safe now Dave. We like all kinds of cheese. I grew up with Velveeta and American but now eat almost all of them. I still think there is a place for those two. We make big batches of mac and cheese for church and school functions and we mostly use more interesting cheeses but I always add a bit fo velveeta since nothing else seems to melt as well. (I very carefully do not read the ingredient list.)


  • Here’s Velveeta:

    Skim Milk, Milk, Canola Oil, Milk Protein Concentrate, Sodium Phosphate, Contains Less than 2% of Modified Food Starch, Whey Protein Concentrate, Maltodextrin, Whey, Salt, Calcium Phosphate, Lactic Acid, Sorbic Acid as a Preservative, Milkfat, Sodium Alginate, Sodium Citrate, Enzymes, Apocarotenal and Annatto (Color), Cheese Culture, Vitamin A Palmitate.

    Here’s American cheese:

    Cheddar Cheese (Cultured Milk, Salt, Enzymes), Skim Milk, Milkfat, Milk Protein Concentrate, Whey, Calcium Phosphate, Sodium Phosphate, Contains Less than 2% of Modified Food Starch, Salt, Lactic Acid, Milk, Annatto and Paprika Extract (Color), Natamycin (a Natural Mold Inhibitor), Enzymes, Cheese Culture, Vitamin D3.

    Here’s cheddar cheese:

    Pasteurized Milk, Cheese Cultures, Salt, Enzymes, Annatto (Color).

    Those are all Kraft so we’re comparing apples to apples. I don’t need it. I’m a good enough cook that I can make good mac and cheese using real cheese. Although truth to tell I haven’t made mac and cheese for years. A good start is making a cheese sauce by reducing the heck out of milk or cream (or some of both) and melting cheddar or jack cheese in that.

    BTW I think I’ve mentioned it before but the only creams I will use have exactly one ingredient: cream. That’s getting harder to find but what’s sold as cream has an ingredients list like American cheese above.

  • Janis Link

    I’ll admit to not turning my nose up at a superior junk food like Rotel sausage dip made with Velveeta. Been a long time but I’d still grab a scoop.

  • steve Link

    Hmm, my American cheese also has monosodium poisonate.

    I never make mac and cheese for home use only for big events, usually with lots of kids. Most have been raised on Kraft so its kind of expected and I still think the stuff melts better than anything.


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