New Trademark Rules for Meats and Cheeses

July 2020


Thanks to our agricultural roots and entrepreneurial spirit, Montana has a thriving and ever-expanding food industry. Among the products made and sold by Montana producers are meats and—believe it or not—cheeses. One of our favorite places to go for meat is Pioneer Meats in Big Timber, Montana, a classic example of field-to-table food manufacturing. In addition to meat products, Montana is home to several cheese producers.

Sellers of cheese products in the United States must adhere to naming rules promulgated by the U.S. Food and Drug Administration. These rules, referred to as "standards of identity," address ingredients and manufacturing methods. For example, cheddar cheese must have a minimum milkfat content of 50 percent by weight of the solids and a maximum moisture content of 39 percent by weight. If the dairy ingredients are pasteurized, the cheese must be cured at a temperature of not less than 35°F for at least 60 days; if pasteurized dairy ingredients are used, the phenol equivalent value of 0.25 gram of cheddar cheese must be not more than three micrograms. The U.S. Department of Agriculture has similar requirements for naming meat products such as salami, bratwurst, etc.

Last month, the U.S. Patent and Trademark Office (USPTO) issued guidelines for trademark examiners handling federal trademark applications for meat and cheese products. These guidelines require examiners to consult the FDA and USDA standards of identity to determine whether a proposed trademark for a meat or cheese product includes a "geo-significant" term. Although it remains to be seen how the trademark office will apply the new rules, examples provided by the USPTO of geo-significant terms include "cheddar," "brie" and "bologna," all of which refer to actual places in Europe.

Geo-significant terms included in proposed meat and food trademarks will be treated as descriptive. As with all trademarks, descriptive terms are subject to a disclaimer (which means that the applicant does not have exclusive rights to the word) or, if the mark consists only of descriptive terms, the mark will either be placed onto the Supplemental Register or refused registration altogether on the grounds that it is generic. According to the USPTO, inclusion of a particular term in the FDA/USDA standards of identity is strong evidence that the term is generic.

Geographical indications have long been considered unregistrable as trademarks because it would unduly restrict commerce to allow only a single person to be able to claim that she sells a specific product from a particular region (such as "Florida oranges"). Existing trademark rules also prohibit people from registering marks that are geographically misdescriptive or misleading (for example, registering "Ruby River Gin" without any connection to the Ruby River Valley). Geographic terms may be registered as certification or collective marks, which are different than trademarks, and both of which are used to signify membership in a group that has established certain criteria. Examples of certification marks are 100% KONA COFFEE and WISCONSIN CHEESE, both of which are staples at our house at Christmas.

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Amicable photo of Toni

Antoinette M. Tease, P.L.L.C.

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