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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Gruia cheese was created in the eleven fifteen in the

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Speaker 1: communal Fribou in a small medieval village called Gruyere. It

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Speaker 1: was only in sixteen o two that the cheese became

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Speaker 1: known as Gruyer without the s. Today, two hundred village

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Speaker 1: daies and fifty Alpine daries from five select cantons still

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Speaker 1: follow the original recipe for this press cheese. What makes

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Speaker 1: Gruyere cheese Gruyer, Well, it's no longer because the cheese

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Speaker 1: comes from the Gruyer region of Switzerland and France. A

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Speaker 1: federal appeals court has ruled that, like Feda Monster or Parmesan,

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Speaker 1: Gruyer can be produced anywhere and sold as Gruyere here

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Speaker 1: in the United States. Joining me is an expert in

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Speaker 1: trademark law, Professor Willigene McLean of the University of Connecticut

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Speaker 1: Law School. This case came about because groups representing cheese

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Speaker 1: producers from Switzerland and France were asked the US Patent

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Speaker 1: and Trademark Office for a mark that would restrict the

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Speaker 1: use of Gruyere to cheese from the Gruyer region. Tell

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Speaker 1: us about that, So what they're looking for is to

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Speaker 1: get what's known as a certification mark, which is a

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Speaker 1: form of trademark. And what a certification mark does is

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Speaker 1: show compliance with a set of standards. So like the

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Speaker 1: underwriter's lab mark, it's not used by the owner itself.

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Speaker 1: It's used on products made by others saying this product

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Speaker 1: was made according to our standards and therefore it gets

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Speaker 1: the seal of approval that it emanated from the Gruyer region,

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Speaker 1: which is in France end Switzerland. And the Fourth Circuit

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Speaker 1: ruled that the term Gruyer is generic as a matter

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Speaker 1: of law. What significance is that? So a term that

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Speaker 1: is generic can never function as a trademark because it's

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Speaker 1: a term that is needed by all to use. For example,

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Speaker 1: you can't get a trademark just for bank for financial

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Speaker 1: services because other financial services need to be able to

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Speaker 1: use the term bank. So the question that gets asked,

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Speaker 1: and this is a simple form of determining whether or

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Speaker 1: not a term is generic, is to ask who are you?

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Speaker 1: What are you? If the answer to who are you

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Speaker 1: is where do you come from? You come from La

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Speaker 1: Gruere in Switzerland, then it operates as a mark if

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Speaker 1: it answers what are you? I e. What are you

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Speaker 1: griere cheese? Then it generic? And so what the court

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Speaker 1: was looking at is the question what the primary significance

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Speaker 1: of the term greer is to the consumer? Right? Does

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Speaker 1: it describe the type of product rather than the producer.

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Speaker 1: If it's the type of product, Dennis, generic should be

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Speaker 1: out there for any cheesemaker who makes it, according to

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Speaker 1: the FDA regulations, to say here is greer cheese. In

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Speaker 1: its opinion, the court went through the history of gruyere

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Speaker 1: to determine how cheese consumers in the US think of it.

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Speaker 1: You know, they basically think of it as that a

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Speaker 1: type of cheese that has a particular flavor in A

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Speaker 1: part of the problem, I think is that the French

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Speaker 1: and swissmakers didn't police the use of the term gruyere

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Speaker 1: well enough. And so if it's been sold in the

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Speaker 1: US since nineteen eighty seven, it was only in twenty

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Speaker 1: twelve when they woke up and said, oh, maybe we

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Speaker 1: better start saying gruyere can only come from this specific region,

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Speaker 1: you know, and by that time the horses out of

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Speaker 1: the proverbial barn. They never challenged the FDA designation of

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Speaker 1: what gruyer was. That was in nineteen seventy seven, so

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Speaker 1: they let too much time elapse. I think that's part

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Speaker 1: of their problem. The French and Swiss groups also complained

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Speaker 1: that the case was decided the summary judgment stage and

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Speaker 1: those opposing the geographic indicator hadn't submitted a consumer survey

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Speaker 1: into evidence, and the court said this argument slices the

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Speaker 1: cheese too thinly. Did the court make this decision without

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Speaker 1: any consumer surveys? Is that unusual? So that's an interesting question.

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Speaker 1: When I teach my class, I say, consumer survey, consumer survey,

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Speaker 1: consumer survey. But there are precedents. There are cases in

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Speaker 1: which they say consumer surveys are great. But if you

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Speaker 1: have overwhelming evidence that the term is generic, we don't

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Speaker 1: necessarily need a consumer survey, and the consumer survey wouldn't

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Speaker 1: necessarily have changed the result. There are other ways in

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Speaker 1: which evidence can be produced as to whether or not

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Speaker 1: a term is generic. How is it used in the press,

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Speaker 1: Does it appear in a dictionary? To give an idea

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Speaker 1: of how the general public views the term. The French

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Speaker 1: and Swiss groups said they've been as you mentioned, they

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Speaker 1: started this about twenty ten, and they said they're going

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Speaker 1: to still continue efforts to protect the Gruyeer name, vigorously

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Speaker 1: continue efforts to protect the Gruyer name. Is there any

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Speaker 1: thing else they can do besides try to get the

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Speaker 1: Supreme Court to look at this? They can try to

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Speaker 1: get the Supreme Court to look at this. I be

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Speaker 1: surprised at the Supreme Court took this case. You know,

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Speaker 1: that's the next level right would be to take it

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Speaker 1: to the Supreme Court. I think they have a hard

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Speaker 1: road to home. The US Patent and Trademark Office and

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Speaker 1: the District Court judge ruled the same way as the

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Speaker 1: Fourth Circuit. So this was sort of an expected decision

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Speaker 1: that the Fourth Circuit didn't do anything crazy here. I

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Speaker 1: don't think the Fourth Circuit did anything crazy. Now. You know,

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Speaker 1: the District Court got this on appeal from the trademark

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Speaker 1: Trial on appeal board. And one of the things that

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Speaker 1: the District Court has to do, according to the Fourth Circuit,

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Speaker 1: is to look at all the evidence afresh from the

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Speaker 1: beginning denovo and so it gave little deference to what

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Speaker 1: the treatmark trialappuel Board decided, and so it took everything

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Speaker 1: that the parties brought. They had more evidentiary information, and

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Speaker 1: they came up with Yes, the ttabes right, this is generic.

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Speaker 1: The question comes to the Fourth Circuit. They look at

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Speaker 1: what the District Court did. There were a couple of

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Speaker 1: things that they said, you know, the District Court should

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Speaker 1: not have done, but on the whole it was a

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Speaker 1: reasonable decision, and the Fourth Circuit said, it's widely considered

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Speaker 1: among the greatest of all cheeses according to the Oxford

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Speaker 1: Companion to Cheese. It's for Companion to Cheese, saying that

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Speaker 1: it's widely considered among the greatest of all cheeses. It's

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Speaker 1: widely considered among the greatest of all cheeses, according to

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Speaker 1: The Oxford Companion to Cheese. Thanks so much, Willa Jean.

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Speaker 1: That's Professor Willa Jean McClean of the University of Connecticut

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Speaker 1: Law School. Tiger Woods is calling the woman suing him

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Speaker 1: for thirty million dollars just a jilted ex girlfriend. Erica Herman,

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Speaker 1: claims Woods tricked her into leaving the home they lived

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Speaker 1: in together for six years, and claims she still had

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Speaker 1: five years left to stay due to an oral agreement,

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Speaker 1: but Wood says there's no such oral tenancy agreement. To

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Speaker 1: add to the legal complications, Herman is attempting to break

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Speaker 1: out of the non disclosure agreement she signed in twenty

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Speaker 1: seventeen when she began dating Woods, claiming it's unenforceable under

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Speaker 1: a federal law that nullifies NDAs if there are matters

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Speaker 1: involving sexual assault or harassment. Joining me Dominic Romano and

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Speaker 1: Daniel Braverman of Romano Law Dominic, what do we know

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Speaker 1: about the NDA? All we know about the NDA is

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Speaker 1: that there's an arbitration clause. The reason that's all we

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Speaker 1: know about the NBA is because the entire confidentiality agreement

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Speaker 1: has been redacted save for the arbitration clause. Do we

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Speaker 1: assume she wants to get out of the NDA because

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Speaker 1: it requires confidential arbitration in all disputes between the parties? Exactly.

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Speaker 1: That's the stated reason. Anyway, Let's talk about why her

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Speaker 1: lawyer says that agreement is invalid. They're using four grounds.

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Speaker 1: They're saying that the court should grant a declaratory judgment

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Speaker 1: invalidating the NBA for two reasons. The first reason is

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Speaker 1: there wasn't sufficient consideration and because it's unconscionable. The second

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Speaker 1: reason is because the scope of the NBA is overbroad.

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Speaker 1: But the third and the fourth reasons are the ones

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Speaker 1: that raise eyebrows. They're saying that the NDA is unenforceable

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Speaker 1: in this case because it calls for an arbitrator to

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Speaker 1: decide the dispute under the Federal Ending Forest Arbitration of

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Speaker 1: Sexual Assault and Sexual Harassment Act of twenty twenty one.

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Speaker 1: And the fourth and final reason, they're saying that the

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Speaker 1: Woods NBA is not enforceable in this case, interestingly under

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Speaker 1: the Federal Speak Out Act, which invalidates nbas where there

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Speaker 1: are claims of or allegations of sexual harassment and sexual

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Speaker 1: assault in a civil cover sheet. Her attorney indicated no

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Speaker 1: when asked if the case involves allegations of sexual assault.

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Speaker 1: Did you see anything in the papers that made allegations

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Speaker 1: of sexual assault or harassment? No? And that's the curious

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Speaker 1: thing about this filing. The original lawsuit was over an

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Speaker 1: oral tendency agreement filed Martin County in Florida. The original

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Speaker 1: filing made no mention and had no allegation of sexual

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Speaker 1: assault sexual harassment. It seems as though, in response to

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Speaker 1: the motion to come how arbitration, they are now arriving

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Speaker 1: at this avenue interesting legal tactic of the sexual assault

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Speaker 1: and sexual harassment angle as a way of overturning not

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Speaker 1: only the forest arbitrations, but also the NBA itself and

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Speaker 1: its entirety. Dan tell us about the oral tendency agreement.

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Speaker 1: She's claning they had, you know, they had a relationship.

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Speaker 1: From claim she was promised that she would have a

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Speaker 1: tendency in his home and that that period of time

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Speaker 1: was five years that already took place, and that there's

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Speaker 1: another six years that she's entitled to live in that home.

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Speaker 1: So she's a plaining that's totally oral. There's nothing in writing.

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Speaker 1: She hasn't produced any type of documentation. And what we

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Speaker 1: find interesting obviously is that obviously when there was a

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Speaker 1: need to enter into a nondisclosure agreement or an arbitration agreement,

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Speaker 1: that's clearly in writing. So it does seem, at least

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Speaker 1: in my opinion, seems interesting that if someone's going to

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Speaker 1: enter into a tendency agreement, almost like a last to

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Speaker 1: agree to lit someone live in your house for a

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Speaker 1: very long period of time, you would expect there would

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Speaker 1: be some type of writing that would reflect that. But

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Speaker 1: this is an oral agreement that she's claiming exists, and

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Speaker 1: she's claiming that she was forced out of this home

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Speaker 1: in violation that oral agreement at trial. Let's say this

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Speaker 1: gets to trial and it's not settled other than as

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Speaker 1: he said, she said situation, are there other ways that

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Speaker 1: she could prove an oral tendency? You know, we deal

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Speaker 1: with this a lot, and an oral contract can sometimes

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Speaker 1: be just as valid as a written contract. What you'd

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Speaker 1: have to do is you'd have to testify, and obviously

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Speaker 1: we see this all the time. Some people are more

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Speaker 1: credible than others, so it'll be under oath testimony. In addition,

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Speaker 1: you may have witnesses and maybe people that you told

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Speaker 1: about this tendency, or maybe that, assuming it did exist,

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Speaker 1: that Tiger Woods might have stated it to someone else,

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Speaker 1: So there might be other people that potentially could come forward.

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Speaker 1: But as you point out with your question, obviously much

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Speaker 1: much easier to prove a tendency agreement, or any type

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Speaker 1: of agreements for that matter, to have something writing, whether

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Speaker 1: the text, email, some type of written communication, And as

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Speaker 1: of now, that doesn't seem to exist, because I would

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Speaker 1: be shocked if that did exist. Why would not be

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Speaker 1: in a complaint that was filed? The damage is there

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Speaker 1: an eye popping thirty million dollars based on the rental

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Speaker 1: value of that property. What kind of property is that?

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Speaker 1: I don't know. Yeah, well, I'm sure it's a use home,

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Speaker 1: I'll put it that much. But I mean, she's obviously

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Speaker 1: claiming that the value of six years would be five

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Speaker 1: million dollars per year, and that by her being removed

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Speaker 1: from the home, that she should be entitled to five

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Speaker 1: million dollars for each year that you know she would

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Speaker 1: have otherwise been in that home. I agree, it's an

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Speaker 1: eye popping number. I'm not sure if that was done purposely. Obviously,

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Speaker 1: that's what's grabbing everyone's attention. But in the statue that

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Speaker 1: does allow for on the Florida law, you know, for

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Speaker 1: certain types of damages if you're wrongfully excluded from from

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Speaker 1: your residence. Herman claims that Wood's used premeditated, prohibited practices

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Speaker 1: and trickery to get her to leave the mansion. Wood

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Speaker 1: says that he arranged for her to stay at a

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Speaker 1: local luxury resort and provided funds she could apply toward

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Speaker 1: a new residence. So does it matter under Florida law?

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Speaker 1: I think generally the answer is probably not. It's not

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Speaker 1: a tremendous amount of a difference. But obviously, if you

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Speaker 1: were on the fence as to whether or not somebody

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Speaker 1: was you know, wrongfully excuted from the home or kicked

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Speaker 1: out of their house without proper procedure. The more interesting,

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Speaker 1: I'll put it that way, the facts that are alleged

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Speaker 1: with how that was done, I think it might help

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Speaker 1: persuade a judge or jury or you know, an arbitrator

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Speaker 1: that you were wrongfully treated in this matter. Here as

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Speaker 1: we knows, what we've been reading is apparently I think

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Speaker 1: the claim is that she was told she was going

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Speaker 1: on a vacation or some type of trip which got

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Speaker 1: out of pat bags, probably sufficient to be out of

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Speaker 1: the home for a period of time, and once she

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Speaker 1: was out, she was told that the relationship was over

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Speaker 1: and that she was no longer welcome. Do you think

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Speaker 1: the likelihood of this is a settlement that this is

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Speaker 1: done to perhaps negotiations fell through and the latest is

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Speaker 1: intended to drive up the settlement numbers, you know, larger?

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Speaker 1: Two things on that point. Number one, I wonder whether

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Speaker 1: this entire dispute could have been would have been avoided

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Speaker 1: if a different method had been used at the outside,

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Speaker 1: you know, had she not been basically accosted of the

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Speaker 1: airport a couple of his people, according to reports, then

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Speaker 1: told she's barred from re entering a place where she'd

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Speaker 1: lived for a number of years. If this might have

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Speaker 1: been resolved privately and confidentially at that point and at

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Speaker 1: this point, it's highly likely in my view that this

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Speaker 1: entire initiative, the objective, the endgame here is to expedite

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Speaker 1: the inevitable settlement that is highly likely to occur here.

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Speaker 1: I agree, I do. I think it's also important to

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Speaker 1: look at, like the procedural history of this matter. You know,

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Speaker 1: the complaint initially was filed when she was removed from

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Speaker 1: the home in October twenty twenty two, and if you

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Speaker 1: look at that complaint, it's an all tendency agreement. I mean,

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Speaker 1: the goal here was she was suing because she believed

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Speaker 1: she was entitled to be in that home for another

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Speaker 1: six years, and she was suing for thirty million dollars.

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Speaker 1: There was no suggestion of any other wrongdoing et cetera,

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Speaker 1: allygames and etc. After she filed that complaint, would his

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Speaker 1: team files for arbitration. It's saying that the nondisclosures enforceable,

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Speaker 1: and more importantly or equally importantly, all her claims have

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Speaker 1: to be an arbitration, and then after that was filed,

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Speaker 1: then she followed a new claim which was just filed

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Speaker 1: earlier this month, which was trying to get the NDA

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Speaker 1: declared unenforceable, as well as a ruling that the matter

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Speaker 1: isn't arbitrable under those two laws that dominant excited earlier,

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Speaker 1: which is under the Speak Out Act, etc. And the

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Speaker 1: end of forced arbitration. But what's interesting about it is

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Speaker 1: when you look at the new lawsuit, that new lawsuit,

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Speaker 1: although there aren't specific allegations, just the mere fact that

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Speaker 1: it mentions potential allegations, or at least if you're bringing

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Speaker 1: a lawsuit to have something invalidated under a law that

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Speaker 1: only allows you to invalidate it, if you're making sexual

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Speaker 1: or assement of sexual assault allegations, it makes someone wonder

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Speaker 1: do you have those allegations? It just makes you question that.

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Speaker 1: I think that threat or that concern, as well as

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Speaker 1: the publicity of it, might be enough to make someone

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Speaker 1: want to resolve the suit, whether they did anything wrong

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Speaker 1: or not. So I think that's that's an important point

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Speaker 1: that I see from the procedural history that we've seen

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Speaker 1: in this matter. And June I would add to that,

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Speaker 1: not only to resolve the dispute and an expedited matter,

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Speaker 1: probably with a higher settlement that might have originally and

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Speaker 1: agreed upon had these claims, these additional claims not been

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Speaker 1: made because they present a greater reputational hazard to the celebrity.

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Speaker 1: Where does the six years come from? My best guess

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Speaker 1: is it may be related to the age of one

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Speaker 1: of the children. It seems like an odd number, not

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Speaker 1: ten years, not five, not fifteen, But eleven is what

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Speaker 1: was claimed, and that's where there's five years left, and

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Speaker 1: where we get the six million a year value from

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Speaker 1: by deduction. But it's not specifically explained in the pleadings

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Speaker 1: why this alleged oral tenancy was for eleven years. Interestingly,

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Speaker 1: she's claiming value of the entire residence, but she didn't

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Speaker 1: live there alone. She lived there obviously with him, and

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Speaker 1: as we understand it, according to reports, two of his children.

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Speaker 1: So arguably, I guess the thirty million could be a

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Speaker 1: lot more, a lot less. So the thirty million just

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Speaker 1: for her portion of the residence, of course, for the

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Speaker 1: entire residence. Yeah, it's unclear whether it's a partial or

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Speaker 1: full tendency of the entire estate. According to Zillo, the

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Speaker 1: Florida estate is worth forty five point eight million dollars.

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Speaker 1: So here's the bigger question, how does a rich person

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Speaker 1: get out of a live in relationship? Here? He had

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Speaker 1: the NDA so that there would be arbitration. She's trying

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Speaker 1: to get around that. So what does a rich person

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Speaker 1: do if he or she wants to have a live

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Speaker 1: in relationship? Choose very carefully who your partner is. These

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Speaker 1: are brand new laws, relatively news. So the first pot,

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Speaker 1: the fourced arbitration Law, only became active in March of

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Speaker 1: twenty twenty two, so it hasn't even been a full year.

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Speaker 1: The Speak Out Act, which was passed unanimously in the

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Speaker 1: Senate and I think over three hundred and fifty votes

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Speaker 1: in the House, that only came into play December, like

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Speaker 1: less than four or four months ago. So you know,

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Speaker 1: it's going to be interesting the way courts interpret these

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Speaker 1: forced arbitration sections and also the validity of these nbas

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Speaker 1: when there are even mere allegations of sexual harassment, let

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Speaker 1: alone assault. And I'll just say I think also, and

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Speaker 1: you know I always think about this in my decades

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Speaker 1: and decades of employment law, is that whenever the same

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Speaker 1: way when you terminate an employment relationship, you want to

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Speaker 1: do it with dignity. You want to do treat someone

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Speaker 1: with respect. We don't know exactly what happened here, but

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Speaker 1: obviously the allegations of how the relationship ended, and the

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Speaker 1: alleged trickery of having a person believe they're going on

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Speaker 1: a trip only to find out that that trip is

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Speaker 1: not on a nice vacation. It's you know, it's it's

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Speaker 1: a permanent removal from from where you're currently you've been,

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Speaker 1: where you've been living for the last you know, five

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Speaker 1: or six years. I think the way things are done

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Speaker 1: also can help, you know, alleviate or try to avoid

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Speaker 1: situations where you get into you know, people might take

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Speaker 1: things a lot more personally rather than you know, view

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Speaker 1: it a little differently. Thanks for being the Bloomberg Law Show.

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Speaker 1: That's Dominic Romano and Daniel Braverman of Romano Law. And

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Speaker 1: that's it for this edition of the Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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