Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: Gruia cheese was created in the eleven fifteen in the
Speaker 1: communal Fribou in a small medieval village called Gruyere. It
Speaker 1: was only in sixteen o two that the cheese became
Speaker 1: known as Gruyer without the s. Today, two hundred village
Speaker 1: daies and fifty Alpine daries from five select cantons still
Speaker 1: follow the original recipe for this press cheese. What makes
Speaker 1: Gruyere cheese Gruyer, Well, it's no longer because the cheese
Speaker 1: comes from the Gruyer region of Switzerland and France. A
Speaker 1: federal appeals court has ruled that, like Feda Monster or Parmesan,
Speaker 1: Gruyer can be produced anywhere and sold as Gruyere here
Speaker 1: in the United States. Joining me is an expert in
Speaker 1: trademark law, Professor Willigene McLean of the University of Connecticut
Speaker 1: Law School. This case came about because groups representing cheese
Speaker 1: producers from Switzerland and France were asked the US Patent
Speaker 1: and Trademark Office for a mark that would restrict the
Speaker 1: use of Gruyere to cheese from the Gruyer region. Tell
Speaker 1: us about that, So what they're looking for is to
Speaker 1: get what's known as a certification mark, which is a
Speaker 1: form of trademark. And what a certification mark does is
Speaker 1: show compliance with a set of standards. So like the
Speaker 1: underwriter's lab mark, it's not used by the owner itself.
Speaker 1: It's used on products made by others saying this product
Speaker 1: was made according to our standards and therefore it gets
Speaker 1: the seal of approval that it emanated from the Gruyer region,
Speaker 1: which is in France end Switzerland. And the Fourth Circuit
Speaker 1: ruled that the term Gruyer is generic as a matter
Speaker 1: of law. What significance is that? So a term that
Speaker 1: is generic can never function as a trademark because it's
Speaker 1: a term that is needed by all to use. For example,
Speaker 1: you can't get a trademark just for bank for financial
Speaker 1: services because other financial services need to be able to
Speaker 1: use the term bank. So the question that gets asked,
Speaker 1: and this is a simple form of determining whether or
Speaker 1: not a term is generic, is to ask who are you?
Speaker 1: What are you? If the answer to who are you
Speaker 1: is where do you come from? You come from La
Speaker 1: Gruere in Switzerland, then it operates as a mark if
Speaker 1: it answers what are you? I e. What are you
Speaker 1: griere cheese? Then it generic? And so what the court
Speaker 1: was looking at is the question what the primary significance
Speaker 1: of the term greer is to the consumer? Right? Does
Speaker 1: it describe the type of product rather than the producer.
Speaker 1: If it's the type of product, Dennis, generic should be
Speaker 1: out there for any cheesemaker who makes it, according to
Speaker 1: the FDA regulations, to say here is greer cheese. In
Speaker 1: its opinion, the court went through the history of gruyere
Speaker 1: to determine how cheese consumers in the US think of it.
Speaker 1: You know, they basically think of it as that a
Speaker 1: type of cheese that has a particular flavor in A
Speaker 1: part of the problem, I think is that the French
Speaker 1: and swissmakers didn't police the use of the term gruyere
Speaker 1: well enough. And so if it's been sold in the
Speaker 1: US since nineteen eighty seven, it was only in twenty
Speaker 1: twelve when they woke up and said, oh, maybe we
Speaker 1: better start saying gruyere can only come from this specific region,
Speaker 1: you know, and by that time the horses out of
Speaker 1: the proverbial barn. They never challenged the FDA designation of
Speaker 1: what gruyer was. That was in nineteen seventy seven, so
Speaker 1: they let too much time elapse. I think that's part
Speaker 1: of their problem. The French and Swiss groups also complained
Speaker 1: that the case was decided the summary judgment stage and
Speaker 1: those opposing the geographic indicator hadn't submitted a consumer survey
Speaker 1: into evidence, and the court said this argument slices the
Speaker 1: cheese too thinly. Did the court make this decision without
Speaker 1: any consumer surveys? Is that unusual? So that's an interesting question.
Speaker 1: When I teach my class, I say, consumer survey, consumer survey,
Speaker 1: consumer survey. But there are precedents. There are cases in
Speaker 1: which they say consumer surveys are great. But if you
Speaker 1: have overwhelming evidence that the term is generic, we don't
Speaker 1: necessarily need a consumer survey, and the consumer survey wouldn't
Speaker 1: necessarily have changed the result. There are other ways in
Speaker 1: which evidence can be produced as to whether or not
Speaker 1: a term is generic. How is it used in the press,
Speaker 1: Does it appear in a dictionary? To give an idea
Speaker 1: of how the general public views the term. The French
Speaker 1: and Swiss groups said they've been as you mentioned, they
Speaker 1: started this about twenty ten, and they said they're going
Speaker 1: to still continue efforts to protect the Gruyeer name, vigorously
Speaker 1: continue efforts to protect the Gruyer name. Is there any
Speaker 1: thing else they can do besides try to get the
Speaker 1: Supreme Court to look at this? They can try to
Speaker 1: get the Supreme Court to look at this. I be
Speaker 1: surprised at the Supreme Court took this case. You know,
Speaker 1: that's the next level right would be to take it
Speaker 1: to the Supreme Court. I think they have a hard
Speaker 1: road to home. The US Patent and Trademark Office and
Speaker 1: the District Court judge ruled the same way as the
Speaker 1: Fourth Circuit. So this was sort of an expected decision
Speaker 1: that the Fourth Circuit didn't do anything crazy here. I
Speaker 1: don't think the Fourth Circuit did anything crazy. Now. You know,
Speaker 1: the District Court got this on appeal from the trademark
Speaker 1: Trial on appeal board. And one of the things that
Speaker 1: the District Court has to do, according to the Fourth Circuit,
Speaker 1: is to look at all the evidence afresh from the
Speaker 1: beginning denovo and so it gave little deference to what
Speaker 1: the treatmark trialappuel Board decided, and so it took everything
Speaker 1: that the parties brought. They had more evidentiary information, and
Speaker 1: they came up with Yes, the ttabes right, this is generic.
Speaker 1: The question comes to the Fourth Circuit. They look at
Speaker 1: what the District Court did. There were a couple of
Speaker 1: things that they said, you know, the District Court should
Speaker 1: not have done, but on the whole it was a
Speaker 1: reasonable decision, and the Fourth Circuit said, it's widely considered
Speaker 1: among the greatest of all cheeses according to the Oxford
Speaker 1: Companion to Cheese. It's for Companion to Cheese, saying that
Speaker 1: it's widely considered among the greatest of all cheeses. It's
Speaker 1: widely considered among the greatest of all cheeses, according to
Speaker 1: The Oxford Companion to Cheese. Thanks so much, Willa Jean.
Speaker 1: That's Professor Willa Jean McClean of the University of Connecticut
Speaker 1: Law School. Tiger Woods is calling the woman suing him
Speaker 1: for thirty million dollars just a jilted ex girlfriend. Erica Herman,
Speaker 1: claims Woods tricked her into leaving the home they lived
Speaker 1: in together for six years, and claims she still had
Speaker 1: five years left to stay due to an oral agreement,
Speaker 1: but Wood says there's no such oral tenancy agreement. To
Speaker 1: add to the legal complications, Herman is attempting to break
Speaker 1: out of the non disclosure agreement she signed in twenty
Speaker 1: seventeen when she began dating Woods, claiming it's unenforceable under
Speaker 1: a federal law that nullifies NDAs if there are matters
Speaker 1: involving sexual assault or harassment. Joining me Dominic Romano and
Speaker 1: Daniel Braverman of Romano Law Dominic, what do we know
Speaker 1: about the NDA? All we know about the NDA is
Speaker 1: that there's an arbitration clause. The reason that's all we
Speaker 1: know about the NBA is because the entire confidentiality agreement
Speaker 1: has been redacted save for the arbitration clause. Do we
Speaker 1: assume she wants to get out of the NDA because
Speaker 1: it requires confidential arbitration in all disputes between the parties? Exactly.
Speaker 1: That's the stated reason. Anyway, Let's talk about why her
Speaker 1: lawyer says that agreement is invalid. They're using four grounds.
Speaker 1: They're saying that the court should grant a declaratory judgment
Speaker 1: invalidating the NBA for two reasons. The first reason is
Speaker 1: there wasn't sufficient consideration and because it's unconscionable. The second
Speaker 1: reason is because the scope of the NBA is overbroad.
Speaker 1: But the third and the fourth reasons are the ones
Speaker 1: that raise eyebrows. They're saying that the NDA is unenforceable
Speaker 1: in this case because it calls for an arbitrator to
Speaker 1: decide the dispute under the Federal Ending Forest Arbitration of
Speaker 1: Sexual Assault and Sexual Harassment Act of twenty twenty one.
Speaker 1: And the fourth and final reason, they're saying that the
Speaker 1: Woods NBA is not enforceable in this case, interestingly under
Speaker 1: the Federal Speak Out Act, which invalidates nbas where there
Speaker 1: are claims of or allegations of sexual harassment and sexual
Speaker 1: assault in a civil cover sheet. Her attorney indicated no
Speaker 1: when asked if the case involves allegations of sexual assault.
Speaker 1: Did you see anything in the papers that made allegations
Speaker 1: of sexual assault or harassment? No? And that's the curious
Speaker 1: thing about this filing. The original lawsuit was over an
Speaker 1: oral tendency agreement filed Martin County in Florida. The original
Speaker 1: filing made no mention and had no allegation of sexual
Speaker 1: assault sexual harassment. It seems as though, in response to
Speaker 1: the motion to come how arbitration, they are now arriving
Speaker 1: at this avenue interesting legal tactic of the sexual assault
Speaker 1: and sexual harassment angle as a way of overturning not
Speaker 1: only the forest arbitrations, but also the NBA itself and
Speaker 1: its entirety. Dan tell us about the oral tendency agreement.
Speaker 1: She's claning they had, you know, they had a relationship.
Speaker 1: From claim she was promised that she would have a
Speaker 1: tendency in his home and that that period of time
Speaker 1: was five years that already took place, and that there's
Speaker 1: another six years that she's entitled to live in that home.
Speaker 1: So she's a plaining that's totally oral. There's nothing in writing.
Speaker 1: She hasn't produced any type of documentation. And what we
Speaker 1: find interesting obviously is that obviously when there was a
Speaker 1: need to enter into a nondisclosure agreement or an arbitration agreement,
Speaker 1: that's clearly in writing. So it does seem, at least
Speaker 1: in my opinion, seems interesting that if someone's going to
Speaker 1: enter into a tendency agreement, almost like a last to
Speaker 1: agree to lit someone live in your house for a
Speaker 1: very long period of time, you would expect there would
Speaker 1: be some type of writing that would reflect that. But
Speaker 1: this is an oral agreement that she's claiming exists, and
Speaker 1: she's claiming that she was forced out of this home
Speaker 1: in violation that oral agreement at trial. Let's say this
Speaker 1: gets to trial and it's not settled other than as
Speaker 1: he said, she said situation, are there other ways that
Speaker 1: she could prove an oral tendency? You know, we deal
Speaker 1: with this a lot, and an oral contract can sometimes
Speaker 1: be just as valid as a written contract. What you'd
Speaker 1: have to do is you'd have to testify, and obviously
Speaker 1: we see this all the time. Some people are more
Speaker 1: credible than others, so it'll be under oath testimony. In addition,
Speaker 1: you may have witnesses and maybe people that you told
Speaker 1: about this tendency, or maybe that, assuming it did exist,
Speaker 1: that Tiger Woods might have stated it to someone else,
Speaker 1: So there might be other people that potentially could come forward.
Speaker 1: But as you point out with your question, obviously much
Speaker 1: much easier to prove a tendency agreement, or any type
Speaker 1: of agreements for that matter, to have something writing, whether
Speaker 1: the text, email, some type of written communication, And as
Speaker 1: of now, that doesn't seem to exist, because I would
Speaker 1: be shocked if that did exist. Why would not be
Speaker 1: in a complaint that was filed? The damage is there
Speaker 1: an eye popping thirty million dollars based on the rental
Speaker 1: value of that property. What kind of property is that?
Speaker 1: I don't know. Yeah, well, I'm sure it's a use home,
Speaker 1: I'll put it that much. But I mean, she's obviously
Speaker 1: claiming that the value of six years would be five
Speaker 1: million dollars per year, and that by her being removed
Speaker 1: from the home, that she should be entitled to five
Speaker 1: million dollars for each year that you know she would
Speaker 1: have otherwise been in that home. I agree, it's an
Speaker 1: eye popping number. I'm not sure if that was done purposely. Obviously,
Speaker 1: that's what's grabbing everyone's attention. But in the statue that
Speaker 1: does allow for on the Florida law, you know, for
Speaker 1: certain types of damages if you're wrongfully excluded from from
Speaker 1: your residence. Herman claims that Wood's used premeditated, prohibited practices
Speaker 1: and trickery to get her to leave the mansion. Wood
Speaker 1: says that he arranged for her to stay at a
Speaker 1: local luxury resort and provided funds she could apply toward
Speaker 1: a new residence. So does it matter under Florida law?
Speaker 1: I think generally the answer is probably not. It's not
Speaker 1: a tremendous amount of a difference. But obviously, if you
Speaker 1: were on the fence as to whether or not somebody
Speaker 1: was you know, wrongfully excuted from the home or kicked
Speaker 1: out of their house without proper procedure. The more interesting,
Speaker 1: I'll put it that way, the facts that are alleged
Speaker 1: with how that was done, I think it might help
Speaker 1: persuade a judge or jury or you know, an arbitrator
Speaker 1: that you were wrongfully treated in this matter. Here as
Speaker 1: we knows, what we've been reading is apparently I think
Speaker 1: the claim is that she was told she was going
Speaker 1: on a vacation or some type of trip which got
Speaker 1: out of pat bags, probably sufficient to be out of
Speaker 1: the home for a period of time, and once she
Speaker 1: was out, she was told that the relationship was over
Speaker 1: and that she was no longer welcome. Do you think
Speaker 1: the likelihood of this is a settlement that this is
Speaker 1: done to perhaps negotiations fell through and the latest is
Speaker 1: intended to drive up the settlement numbers, you know, larger?
Speaker 1: Two things on that point. Number one, I wonder whether
Speaker 1: this entire dispute could have been would have been avoided
Speaker 1: if a different method had been used at the outside,
Speaker 1: you know, had she not been basically accosted of the
Speaker 1: airport a couple of his people, according to reports, then
Speaker 1: told she's barred from re entering a place where she'd
Speaker 1: lived for a number of years. If this might have
Speaker 1: been resolved privately and confidentially at that point and at
Speaker 1: this point, it's highly likely in my view that this
Speaker 1: entire initiative, the objective, the endgame here is to expedite
Speaker 1: the inevitable settlement that is highly likely to occur here.
Speaker 1: I agree, I do. I think it's also important to
Speaker 1: look at, like the procedural history of this matter. You know,
Speaker 1: the complaint initially was filed when she was removed from
Speaker 1: the home in October twenty twenty two, and if you
Speaker 1: look at that complaint, it's an all tendency agreement. I mean,
Speaker 1: the goal here was she was suing because she believed
Speaker 1: she was entitled to be in that home for another
Speaker 1: six years, and she was suing for thirty million dollars.
Speaker 1: There was no suggestion of any other wrongdoing et cetera,
Speaker 1: allygames and etc. After she filed that complaint, would his
Speaker 1: team files for arbitration. It's saying that the nondisclosures enforceable,
Speaker 1: and more importantly or equally importantly, all her claims have
Speaker 1: to be an arbitration, and then after that was filed,
Speaker 1: then she followed a new claim which was just filed
Speaker 1: earlier this month, which was trying to get the NDA
Speaker 1: declared unenforceable, as well as a ruling that the matter
Speaker 1: isn't arbitrable under those two laws that dominant excited earlier,
Speaker 1: which is under the Speak Out Act, etc. And the
Speaker 1: end of forced arbitration. But what's interesting about it is
Speaker 1: when you look at the new lawsuit, that new lawsuit,
Speaker 1: although there aren't specific allegations, just the mere fact that
Speaker 1: it mentions potential allegations, or at least if you're bringing
Speaker 1: a lawsuit to have something invalidated under a law that
Speaker 1: only allows you to invalidate it, if you're making sexual
Speaker 1: or assement of sexual assault allegations, it makes someone wonder
Speaker 1: do you have those allegations? It just makes you question that.
Speaker 1: I think that threat or that concern, as well as
Speaker 1: the publicity of it, might be enough to make someone
Speaker 1: want to resolve the suit, whether they did anything wrong
Speaker 1: or not. So I think that's that's an important point
Speaker 1: that I see from the procedural history that we've seen
Speaker 1: in this matter. And June I would add to that,
Speaker 1: not only to resolve the dispute and an expedited matter,
Speaker 1: probably with a higher settlement that might have originally and
Speaker 1: agreed upon had these claims, these additional claims not been
Speaker 1: made because they present a greater reputational hazard to the celebrity.
Speaker 1: Where does the six years come from? My best guess
Speaker 1: is it may be related to the age of one
Speaker 1: of the children. It seems like an odd number, not
Speaker 1: ten years, not five, not fifteen, But eleven is what
Speaker 1: was claimed, and that's where there's five years left, and
Speaker 1: where we get the six million a year value from
Speaker 1: by deduction. But it's not specifically explained in the pleadings
Speaker 1: why this alleged oral tenancy was for eleven years. Interestingly,
Speaker 1: she's claiming value of the entire residence, but she didn't
Speaker 1: live there alone. She lived there obviously with him, and
Speaker 1: as we understand it, according to reports, two of his children.
Speaker 1: So arguably, I guess the thirty million could be a
Speaker 1: lot more, a lot less. So the thirty million just
Speaker 1: for her portion of the residence, of course, for the
Speaker 1: entire residence. Yeah, it's unclear whether it's a partial or
Speaker 1: full tendency of the entire estate. According to Zillo, the
Speaker 1: Florida estate is worth forty five point eight million dollars.
Speaker 1: So here's the bigger question, how does a rich person
Speaker 1: get out of a live in relationship? Here? He had
Speaker 1: the NDA so that there would be arbitration. She's trying
Speaker 1: to get around that. So what does a rich person
Speaker 1: do if he or she wants to have a live
Speaker 1: in relationship? Choose very carefully who your partner is. These
Speaker 1: are brand new laws, relatively news. So the first pot,
Speaker 1: the fourced arbitration Law, only became active in March of
Speaker 1: twenty twenty two, so it hasn't even been a full year.
Speaker 1: The Speak Out Act, which was passed unanimously in the
Speaker 1: Senate and I think over three hundred and fifty votes
Speaker 1: in the House, that only came into play December, like
Speaker 1: less than four or four months ago. So you know,
Speaker 1: it's going to be interesting the way courts interpret these
Speaker 1: forced arbitration sections and also the validity of these nbas
Speaker 1: when there are even mere allegations of sexual harassment, let
Speaker 1: alone assault. And I'll just say I think also, and
Speaker 1: you know I always think about this in my decades
Speaker 1: and decades of employment law, is that whenever the same
Speaker 1: way when you terminate an employment relationship, you want to
Speaker 1: do it with dignity. You want to do treat someone
Speaker 1: with respect. We don't know exactly what happened here, but
Speaker 1: obviously the allegations of how the relationship ended, and the
Speaker 1: alleged trickery of having a person believe they're going on
Speaker 1: a trip only to find out that that trip is
Speaker 1: not on a nice vacation. It's you know, it's it's
Speaker 1: a permanent removal from from where you're currently you've been,
Speaker 1: where you've been living for the last you know, five
Speaker 1: or six years. I think the way things are done
Speaker 1: also can help, you know, alleviate or try to avoid
Speaker 1: situations where you get into you know, people might take
Speaker 1: things a lot more personally rather than you know, view
Speaker 1: it a little differently. Thanks for being the Bloomberg Law Show.
Speaker 1: That's Dominic Romano and Daniel Braverman of Romano Law. And
Speaker 1: that's it for this edition of the Bloomberg Law Show.
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Speaker 1: I'm June Grosso and you're listening to Bloomberg