submission to object to terms proposed by the … gorgonzola submission … · january 1897 that...

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SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE EUROPEAN UNION FOR PROTECTION AS GEOGRAPHICAL INDICATIONS IN AUSTRALIA Submitter’s contact information Name: Shawna Morris Company represented, including ACN or ABN, if any: Consortium for Common Food Names (CCFN) Other representative: E-mail address: [email protected] Mailing address: 2107 Wilson Blvd., Suite 600, Arlington, VA, 22201, United States of America Phone number: +1 (703) 528-4818 EU GI name you are objecting to (please use a new form for each term objected to) GORGONZOLA Ground(s) of objection to the protection of the EU GI name (please tick all the grounds that apply) 1. The EU GI name is used in Australia as the common name for the relevant good. (See details below regarding grounds for our objection based on this element.) 2. The EU GI name is used in Australia as the name of a plant variety or an animal breed. (Please provide any relevant information that shows the name is also a plant variety or animal breed, such as studies, articles, copies of websites or any other relevant information) 3. The EU GI name is identical to, or likely to cause confusion with a trademark or geographical indication that is registered or the subject of a pending application in Australia. (Please include the details of the GI or the trade mark including the trade mark number) 4. The EU GI name is identical, or likely to cause confusion with, an unregistered trade mark or geographical indication that has acquired rights through use in Australia. (Please identify the trade mark or GI and provide information that demonstrates how it is being used in the Australian marketplace.) 5. The EU GI name contains or consists of scandalous matter. (Please identify examples of how the name could be used in an offensive manner and who it would be offensive to.) X

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Page 1: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE EUROPEAN UNION FOR PROTECTION AS GEOGRAPHICAL INDICATIONS IN AUSTRALIA

Submitter’s contact information

Name: Shawna Morris

Company represented, including ACN or ABN, if any: Consortium for Common Food Names (CCFN)

Other representative:

E-mail address: [email protected]

Mailing address: 2107 Wilson Blvd., Suite 600, Arlington, VA, 22201, United States of America

Phone number: +1 (703) 528-4818

EU GI name you are objecting to (please use a new form for each term objected to)

GORGONZOLA

Ground(s) of objection to the protection of the EU GI name (please tick all the grounds that apply)

1. The EU GI name is used in Australia as the common name for the relevant good. (See details below regarding grounds for our objection based on this element.)

2. The EU GI name is used in Australia as the name of a plant variety or an animal

breed. (Please provide any relevant information that shows the name is also a plant variety or animal breed, such as studies, articles, copies of websites or any other relevant information)

3. The EU GI name is identical to, or likely to cause confusion with a trademark or

geographical indication that is registered or the subject of a pending application in Australia. (Please include the details of the GI or the trade mark including the trade mark number)

4. The EU GI name is identical, or likely to cause confusion with, an unregistered trade

mark or geographical indication that has acquired rights through use in Australia. (Please identify the trade mark or GI and provide information that demonstrates how it is being used in the Australian marketplace.)

5. The EU GI name contains or consists of scandalous matter. (Please identify

examples of how the name could be used in an offensive manner and who it would be offensive to.)

X

Page 2: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Information or evidence supporting objection

1. The Opponent, the Consortium for Common Food Names (“CCFN”), is an independent, international non-profit alliance whose goal is to work with leaders in agriculture, trade, and

intellectual property rights to foster the adoption of high standards and model geographical indication guidelines throughout the world. It is committed to working closely with all

stakeholders as well as policymakers in the world to assist in amongst others, developing a clear and reasonable scope of protection for geographical indications as well as to foster

adoption of a high-standard and model geographical indication guidelines worldwide.

2. The word “gorgonzola” is a common name, describing a particular style of cheese. This blue

cheese can be buttery or firm, crumbly and quite salty, with a "bite" from its blue veining. In support of ground number 1, above (the EU GI name is used in Australia as the common name

for the relevant good), CCFN presents the following evidence and information in support:

• In Australia the term “gorgonzola” has been in the market for a long time: it is clear in the 3 examples below that other traders from outside the region of Italy used

"gorgonzola" in relation to cheese products offered in Australia. The advertisements below which appeared in Australia in the late 1800s describe the

product as “English” for instance: i. Extracted below is an advertisement from The Argus dated 16 January

1882, referring to "6 cases prime English cheese [emphasis added], comprising Stilton, Gorgonzola and Rochefort [sic]":

Page 3: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

ii. Extracted below is an advertisement from The Australian Star dated 20 January 1897 that advertises Australian-made gorgonzola. Bodalla is a

New South Wales- based dairy company:

iii. Extracted below is an advertisement from The Argus dated 18 January 1882, referring to "6 cases prime English cheese [emphasis added],

comprising Stilton, Gorgonzola and Rochefort [sic]":

Page 4: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

• A Victorian Government Gazette of 11 June 1952 (http://www.austlii.edu.au/au/other/vic_gazette/1952/489.pdf) specified post-war

pricing for the following "gorgonzola" products on page 2943: i. Jacobs Gorgonzola. Jacobs Dairy Produce Company Ltd was an

Australian diary and cheese making company:

ii. Danish Gorgonzola (this presumably indicates a product originating in Denmark);

iii. Plumrose Brand Gorgonzola. Plumrose was historically a Danish company

(https://australianfoodtimeline.com.au/petersville/) and the PLUMROSE brand is now owned by Zwanenberg Food Group BV, a Dutch company

(see, for example, Australian trade mark registration 131889; iv. Kraft Gorgonzola cheese spread. Kraft is an American grocery

manufacturing and processing company headquartered in Chicago, Illinois.

• Australian cheese manufacturers continue to use "gorgonzola-style" and similar terms as a description of their blue vein cheese products to inform consumers

about the nature of their products. These include: Lion Foods' ENDEAVOUR BLUE cheese product, which is labelled as "gorgonzola style":

Page 5: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

The product has been sold in Australia since 1998.

• "Gorgonzola" is claimed as a good in several current or former trade mark

applications and registrations in Australia, the details of which are set out in Annexure A. The applicants and registrants include Australian traders and other

Italian traders from outside the EU PDO "gorgonzola" region in Italy. These indicate that the term is regarded as a common name for a style of cheese in Australia by Australian and European producers alike.

• Around the world, “gorgonzola” has been produced and sold as a generic name for a type of cheese. It has been used extensively by many cheese manufacturers.

For example, in the United States, Canada and Uruguay companies offer cheeses

Page 6: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

not produced in Italy using the term “gorgonzola”. Exhibit 1 is a non-exhaustive list of companies that offer cheeses under the generic term “gorgonzola”. Pages from

each of the websites showing use of the generic terms are also attached as part of Exhibit 1. It is important to note that each of these websites can be accessed by

the Australian consumer. In addition to New Zealand and the EU, the USA is one of the three major exporters of cheese products to Australia:

https://www.dairyaustralia.com.au/industry/production-and-sales/cheese, so protection would present an obstacle to the legitimate export activities of major

trading partners.

• In one of Australia’s free trade agreement partners, the United States Food and Drug Administration has established what are known as standards of identity

(SOIs). SOIs establish the common name for a food and define the basic nature of that food and its ingredients. The US Code of Federal Regulations Title 21--FOOD AND DRUGS, CHAPTER I--FOOD AND DRUG ADMINISTRATION,

SUBCHAPTER B--FOOD FOR HUMAN CONSUMPTION establishes the production process of “gorgonzola” cheese. A copy of the relevant section of the

code is attached as Exhibit 2. This SOI, in addition to establishing “gorgonzola” as the product name for this type of cheese for production in the United States, would

also apply to any “gorgonzola” cheese imported from non-United States countries, including Australia. Given that Australia is a significant exporter of cheese to the

United States, Australian exporters of cheese to the United States would be familiar with the fact that “gorgonzola” is considered a generic term for a type of cheese

and not a cheese from a specific geographic location. See Exhibit 3 showing cheese exports to the United States from Australia.

• Even the European Union has a documented record of previously treating “gorgonzola” as a generic term for a type of cheese as evidenced by the fact that

“gorgonzola” is listed in the EU tariff schedule. The Integrated Tariff of the European Community (“TARIC”) applies to all members of the EU and contains

more than 14,000 codes for goods. TARIC designates the tax rate for each code of imported goods, other fees payable upon import, and licenses/special licenses

(if requested) for importing goods into the EU from countries all around the world, including from Australia. ‘Gorgonzola” cheese is listed in TARIC under code

04064050 and can be found in Exhibit 4. If “gorgonzola” was not a type of cheese and could only be produced under the EU geographical indication for “gorgonzola”,

there would be no need to include the term in the tariff schedule.

Page 7: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

• Australia media articles are listing “gorgonzola” as a type of cheese, including references to it being made in Australia, that’s at threat of restriction. In these media

reports there are references to both Australian production and at times production in other countries as well. Link to the articles can be found in Exhibit 5.

• In different blogs in Australia “gorgonzola” is used in a way that suggests it is simply

an ingredient or type of cheese which can be produced anywhere. Some examples can be found in Exhibit 6.

• The United States and Australia brought a World Trademark Organization dispute resolution procedure (DS174; DS290) against the EU’s geographical indication

protection regime (the predecessor to the current EU protection regime). The EU defended its protection of geographical indications even when those protections

would be in conflict with prior trademark rights. The EU was successful in defending its geographical indication regime based solely on the grounds that use

of the geographical indications registered pursuant to that regime would be considered a “fair use” under Article 17 of the TRIPS Agreement. It is striking that

the EU now tries to deny the “fair use” of generic terms based on those same geographical indications. Specifically, the EU stated:

“Moreover, Article 17 [of the TRIPS Agreement] mentions expressly as an

example of "limited exception" the "fair use of descriptive terms".

Geographical indications are "descriptive terms"…. The use of a

geographical indication in order to indicate the true origin of the goods and

the characteristic associated to that origin is certainly a "fair" use of that

descriptive term.”

WT/DS174/R/Add.2

Annex B-2, page B-81, ¶318

174RA2-01.pdf

This bad faith action on the part of the EU clearly indicates that its efforts to protect “gorgonzola” as a geographical indication in Australia is nothing more than an

attempt to monopolize generic terms for the benefit of its producers and to the detriment of other producers from around the world and to the detriment of

Australian supply chain purchasers and consumers who would be denied greater competition and more choices of cheese products

• The pursuit of protection for this EU GI despite clear evidence of the common name status of “gorgonzola” is imposing costly burdens on companies by forcing

Page 8: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

businesses (directly or via associations) to object to this GI to avoid negative impacts. Registration of the GI would compound this harm, resulting in heavy

burdens on Australian food manufacturers/suppliers/importers, as well as on companies in Australia’s trade partners, who are simply trying to continue to sell

their products and maintain market access opportunities already established by Australia, whether domestically or via market access rights granted under prior

FTAs such as the U.S.-Australia FTA. Granting protection for the term “gorgonzola” as a GI would be highly disruptive in terms of their continued sales and

maintenance of future sales opportunities for this product type.

• Protection of EU GIs will give GI holders effectively “permanent” protection as a result of the typical nature of GI protection as well as wide ranging enforcement

rights against the use of common names as ingredients (which extends beyond the usual scope of trademark rights), as well as the ability to enforce protected GIs against what the EU asserts to be “deceptively similar” names, which could capture

additional common names, names that include only part of the GI or part of the English translation of the foreign name. EU trademark owners can already obtain

protection for their specific registered marks in Australia and should be required to pursue the exact same process open to all other mark applicants already. It is

entirely inappropriate for Australia to contemplate granting EU producers special privileges that they could not win through use of the trademark system on the

independent merits of their own applications.

3. For the foregoing reasons, we respectfully request that the term GORGONZOLA be denied protection as a geographical indication in Australia.

Page 9: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Annexure A – Current and expired Australian trade mark registrations for goods including "gorgonzola"

Australia

Mark Number Owner Filing Date Classes/Goods and Services Status SO GOOD IT'S PERFECT

1115058 New Zealand Milk

Brands Limited

24 MAY 2006

(Priority Date:

23 MAY 2006)

Class: 29 Cheese including Italian style cheese, ricotta,

cottage, mozzarella, bocconcini, gorgonzola, mascarpone,

parmesan, pecorino, romana and hard cheeses; cheese

products

Lapsed

1742113

(IR

No.12795

92)

SAVIOLA S.p.a. 01 OCT 2015 Class: 29 Milk and milk derivatives (dairy products); cheese;

cheese from the Po area and Parmesan (Grana Padano and

Parmigiano Reggiano); cheese from the Po area and grated

Parmesan (grated Grana Padano and Parmigiano Reggiano);

mozzarella; Gorgonzola (mould-ripened and blue-veined

cheese); cheese cut into pieces; soft cheese; pressed

cheese; cut cheese; charcuterie; hams; sausages; bacon;

pork-based foods (capocollo)

Not protected:

Not accepted

MOZZARISELLA 1940397

(IR

No.13181

89)

MISTER BIO

FOOD S.r.l.,

FRESCOLAT S.r.l.

25 MAY 2018 Class: 29 White of eggs, eggs, egg substitutes; fish, not live,

fish substitutes, fish-based food, namely fish fillets, fish pies,

fish sticks, fish balls, fish cakes, breaded fish, fish burgers,

surimi, fish for making sushi; foodstuffs based on fish

substitutes, namely fillets based on fish substitutes, pies

based on fish substitutes, sticks based on fish substitutes;

foodstuffs based on fish substitutes, namely balls based on

fish substitutes, cakes based on fish substitutes, breaded fish

Registered

(Renewal Due

Date 19 FEB

2026)

Page 10: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Australia

Mark Number Owner Filing Date Classes/Goods and Services Status substitutes, burgers based on fish substitutes, surimi based

on fish substitutes, fish substitutes for making sushi; fresh,

chilled and frozen foodstuffs based on fish and fish

substitutes, namely fish mousses, fish pie, fish sausages, fish

sticks, fish balls, fish cakes, breaded fish, fish burgers, surimi,

fish for making sushi, sticks based on fish substitutes; fresh,

chilled and frozen foodstuffs based on fish and fish

substitutes, namely balls based on fish substitutes, cakes

based on fish substitutes, breaded fish substitutes, burgers

based on fish substitutes, surimi based on fish substitutes,

fish substitutes for making sushi; fish fingers made with fish

and with fish substitutes; fermented vegetable foodstuffs,

namely kimchi; cooked, preserved and frozen chicken, meat,

fish, croquettes based on fish or meat substitutes; french fries;

vegetarian meatballs, cooked, preserved and frozen

vegetarian meatballs; meat, meat substitutes, foodstuffs

consisting predominantly of meat, foodstuffs consisting

predominantly of meat substitutes; fresh, chilled and frozen

foodstuffs consisting predominantly of meat and meat

substitutes; milk ferments for culinary purposes; dairy

products and substitutes therefor, namely cheese, cheese

spreads, melted cheese, fresh non-matured cheese, matured

Page 11: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Australia

Mark Number Owner Filing Date Classes/Goods and Services Status cheese, cream cheese, gorgonzola; dairy products and dairy

substitutes, namely, substitutes for fresh non-matured

cheese, matured cheese substitutes, cheese spread

substitutes, gorgonzola substitutes, melted cheese

substitutes; cheese products, cheese substitutes; milk; soya

milk [milk substitute]; rice milk for use as a milk substitute;

dairy products, namely, cheese products, yoghurt, cream

(dairy products), whipped cream; dairy products based on

milk substitutes, namely, cheese substitutes, yoghurt

substitutes, cream substitutes, whipped cream substitutes;

margarine, margarine substitutes; cream (dairy products),

creamed vegetables; whipped cream, whipped cream

substitutes; yogurt, yoghurt substitutes, yoghurt based on milk

substitutes; fermented milk, beverages based on fermented

milk; curd; beverages based on sour milk; fermented milk

substitutes, beverages based on fermented milk substitutes;

lactic acid bacteria drinks; kefir [milk beverage]; desserts

based on milk substitutes, namely milk-based beverages, milk

shakes; fruit jellies; fruit salads; fruit-based snack food;

unsweetened and unflavoured jellies; hummus; soup

(preparations for making-), chowder, mousses (vegetable);

Page 12: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Australia

Mark Number Owner Filing Date Classes/Goods and Services Status edible fats, namely fat-containing mixtures for bread slices;

veggie burgers [patties]; fruit pulp

Class: 30 Preparations made from cereals, namely, cereal-

based flakes, maize flakes; rusks; muesli; pizza, uncooked

pizzas, preserved pizzas, frozen pizzas; pasta, ravioli,

macaroni, spaghetti, vermicelli [noodles], noodles, tortellini,

pasta containing stuffings, lasagne; bread, bread rolls,

crackers; noodle-based prepared meals; egg rolls; cereal-

based snack food; sushi; tabbouleh; tacos; tortillas; frozen,

prepared or pre-packaged ready meals consisting

predominantly of pasta or rice; frozen dough for pizzas, bread

or other bakery goods; frozen pastries; bread rolls, filled bread

rolls, cheeseburgers; amaretti biscuits; spice preparations in

paste form, sweet pasties, sponge cake; high-protein cereal

bars; cocoa, cocoa spreads, cocoa-based beverages, candy

with cocoa, chocolate-coated cocoa beans, cocoa beverages

with milk, cocoa extracts for human consumption, mixes for

cocoa, cocoa powder, cocoa-based beverages, cocoa-based

sauces and condiments for food and beverages, cocoa-based

ingredients for confectionery; tarts, sponge cake, buns,

waffles; pastes for cakes, namely icing for cakes and frosting

for cakes; puff pastry, shortbread; short pastry, namely, choux

Page 13: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Australia

Mark Number Owner Filing Date Classes/Goods and Services Status pastry, shortcrust pastry dough; sour dough; cake powder,

namely, flavourings, other than essential oils, for cakes; cake

mixes; tarts; mousses (chocolate -); gingerbread, cakes,

frozen cakes; pie crusts; sponge cake; lozenges; sweeteners

(natural -); confectionery, namely sugar confectionery, frozen

confectionery, chocolate cakes; bubble gum; halvah; malt

extracts and malt for human consumption; caramels; fruit

sauces, other than cranberry sauce and apple sauce; custard;

pancakes; imitation custard; puddings; pudding substitutes;

edible ices, starch-based binding agents for ice cream,

powders for ice cream, ice cream substitute; frozen dessert

products, namely, frozen soya-based cakes, frozen cakes

based on fruit and cream or cream substitutes; rice-based

cakes, namely rice-based puddings and cakes based on

ground rice; sorbets and sherbets; beverages based on

coffee, tea, cocoa and substitutes therefor; drinking chocolate;

vegetal preparations for use as coffee substitutes; savory

pastries; meat pies, pies made with meat substitutes; fish-

based pastes, pastes containing fish substitutes; pies

containing vegetables; pies containing cheese, pies

containing cheese substitutes; pies containing egg, pies

containing egg substitutes; spices; alimentary seasonings,

Page 14: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Australia

Mark Number Owner Filing Date Classes/Goods and Services Status namely, sauces; condiments, namely, tomato ketchup, pesto,

mayonnaise, imitation mayonnaise, salad dressings,

marinades, tomato sauce; soya bean paste; sauces; frozen

yoghurt based on yoghurt and yoghurt substitutes

Page 15: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Exhibit 1:

Non-exhaustive List of Companies Producing Cheese containing the term "gorgonzola”

as a generic name outside Australia

Company Name Country Website

Castello Canada https://www.castellocheese.com/en-ca/products/castello-gorgonzola/

Nonno Antonio Uruguay https://www.nonnoantonio.com/quesos.html

Belgioioso Cheese Company

United States https://www.belgioioso.com/Products/Crumbly-Gorgonzola

Churny Company United States https://www.athenos.com/products/other

Saputo Cheese USA Inc. (Stella brand)

United States https://www.stellacheese.com/en/our-cheese/gorgonzola/gorgonzola

Caves of Faribault United States http://www.faribaultdairy.com/about/amablu-

gorgonzola.htm

Page 16: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Company Name Country Website

Crystal Farms RDC United States http://www.crystalfarmscheese.com/products/product-view.cfm?ProductID=167&sel1=&sel2=asiago,blue%20cheese,feta,goat,gorgonzola,parmesan,romano,ricotta,&sel3=

Carr Valley Cheese Co., Inc.

United States https://carrvalleycheese.com/?s=gorgonzola&orderby=relevance&order=DESC&post_type=post%2Cpage%2Cproduct%2Ccpt_iconic_wlv

Dairy Farmers of Wisconsin

United States https://www.wisconsincheese.com/find-cheese/ch/25/gorgonzola

Sartori Company United States https://shop.sartoricheese.com/search?q=gorgo

nzola

Page 17: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Exhibit 2: U.S. Code of Federal Regulations

10/21/19, 12:31 PMCFR - Code of Federal Regulations Title 21

Page 1 of 3https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRSearch.cfm?fr=133.141

The information on this page is current as of April 1 2019.For the most up-to-date version of CFR Title 21, go to the Electronic Code of Federal Regulations(eCFR).6

New Search Help7 | More About 21CFR 8

[Code of Federal Regulations][Title 21, Volume 2][Revised as of April 1, 2019][CITE: 21CFR133.141]

TITLE 21--FOOD AND DRUGSCHAPTER I--FOOD AND DRUG ADMINISTRATIONDEPARTMENT OF HEALTH AND HUMAN SERVICESSUBCHAPTER B--FOOD FOR HUMAN CONSUMPTION

PART 133 -- CHEESES AND RELATED CHEESE PRODUCTS

Subpart B--Requirements for Specific Standardized Cheese and RelatedProducts

Sec. 133.141 Gorgonzola cheese.

(a) Description. (1) Gorgonzola cheese is the food prepared by theprocedure set forth in paragraph (a)(2) of this section or by any otherprocedure which produces a finished cheese having the same physical andchemical properties. It is characterized by the presence of bluish-greenmold, Penicillium roquefortii, throughout the cheese. The minimum milkfatcontent is 50 percent by weight of the solids and the maximum moisturecontent is 42 percent by weight, as determined by the methods described in133.5. The dairy ingredients used may be pasteurized. Gorgonzola cheese isat least 90 days old.

(2) One or more of the dairy ingredients specified in paragraph (b)(1) ofthis section may be warmed and is subjected to the action of a lactic acid-producing bacterial culture. One or more of the clotting enzymes specifiedin paragraph (b)(2) of this section is added to set the dairy ingredientsto a semisolid mass. The mass is cut into smaller portions and allowed tostand for a time. The mixed curd and whey is placed into forms permittingfurther drainage. While being placed in forms, spores of the moldPenicillium roquefortii are added. The forms are turned several timesduring drainage. When sufficiently drained, the shaped curd is removed fromthe forms and salted with dry salt or brine. Perforations are then made inthe shaped curd and it is held at a temperature of approximately 50 deg. Fat 90 to 95 percent relative humidity, until the characteristic mold growthhas developed. During storage, the surface of the cheese may be scraped to

CFR - Code of Federal Regulations Title 21FDA Home3 Medical Devices4 Databases5

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10/21/19, 12:31 PMCFR - Code of Federal Regulations Title 21

Page 2 of 3https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRSearch.cfm?fr=133.141

remove surface growth of undesirable microorganisms. One or more of theother optional ingredients specified in paragraph (b)(3) of this sectionmay be added during the procedure.

(b) Optional ingredients. The following safe and suitable ingredients maybe used:

(1) Dairy ingredients. Milk, nonfat milk, or cream, as defined in 133.3, orcorresponding products of goat origin, used alone or in combination.

(2) Clotting enzymes. Rennet and/or other clotting enzymes of animal,plant, or microbial origin.

(3) Other optional ingredients. (i) Blue or green color in an amount toneutralize the natural yellow color of the curd.

(ii) Calcium chloride in an amount not more than 0.02 percent (calculatedas anhydrous calcium chloride) of the weight of the dairy ingredients, usedas a coagulation aid.

(iii) Enzymes of animal, plant, or microbial origin, used in curing orflavor development.

(iv) Antimycotic agents, the cumulative levels of which shall not exceedcurrent good manufacturing practice, may be added to the surface of thecheese.

(v) Benzoyl peroxide, or a mixture of benzoyl peroxide with potassium alum,calcium sulfate, and magnesium carbonate used to bleach the dairyingredients. The weight of the benzoyl peroxide is not more than 0.002percent of the weight of the dairy ingredients being bleached, and theweight of the potassium alum, calcium sulfate, and magnesium carbonate,singly or combined, is not more than six times the weight of the benzoylperoxide used. If the dairy ingredients are bleached in this manner,vitamin A is added to the curd in such quantity as to compensate for thevitamin A or its precursors destroyed in the bleaching process, andartificial coloring is not used.

(vi) Vegetable fats or oil which may be hydrogenated, used as a coating forthe rind.

(c) Nomenclature. The name of the food is "gorgonzola cheese".

(d) Label declaration. Each of the ingredients used in the food shall bedeclared on the label as required by the applicable sections of parts 101and 130 of this chapter, except that:

(1) Enzymes of animal, plant, or microbial origin may be declared as"enzymes"; and

(2) The dairy ingredients may be declared, in descending order ofpredominance, by the use of the terms "milkfat and nonfat milk" or "nonfatmilk and milkfat", as appropriate; "milkfat from goat's milk and nonfatgoat's milk", etc.

[54 FR 32054, Aug. 4, 1989, as amended at 58 FR 2893, Jan. 6, 1993]

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10/21/19, 12:31 PMCFR - Code of Federal Regulations Title 21

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Page 20: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Exhibit 3: Cheese export data from Australia to the United States of America

https://apps.fas.usda.gov/gats/ExpressQuery1.aspx

2018 2018HS Code Product UOM Value Qty0406.90.0890 CH,CHDDR,QT MT 6,298 1,360.600406.90.1200 CH,CHDDR,OQ MT 1,523 337.40406.10.9500 CH,F,OT,>.5%F,OQ MT 1,008 1170406.90.9700 C/SB,IMX,>.5F,OQ MT 371 201.40406.10.8800 OTH CHS MT 209 52.80406.90.9900 C/SB,IMX,OQ MT 137 40406.30.2400 CH,PR,CHDDR,QT MT 78 11.30406.30.9100 CH,PR-MX,>.5F,OQ MT 55 36.40406.40.7000 CH,B-V,XOL,OQ MT 33 1.6Grand Total All Cheeses MT 9,711 2,122.40Source: USDA FAS Database

Values in Thousands of U.S. DollarsU.S. Cheese Imports from Australia (CY 2018)

Page 21: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Exhibit 4: European Tariff codes

European Commission : Trade : Export Helpdesk

http://exporthelp.europa.eu/...n&section=tariff&taricCode=0406000000&prodLine=80&limitLevel=10&simDate=20130627&languageId=en[8/8/2017 11:15:53 AM]

--- Of a fat content, by weight, exceeding 36 %

- Blue-veined cheese and other cheese containing veinsproduced by Penicillium roqueforti

-- Roquefort

-- Gorgonzola

-- Other

- Other cheese

-- For processing

-- Other

--- Emmentaler

--- Gruyère, Sbrinz

--- Bergkäse, Appenzell

--- Fromage fribourgeois, Vacherin Mont d'Or and Tête deMoine

--- Glarus herb cheese (known as Schabziger) made fromskimmed milk and mixed with finely ground herbs

--- Cheddar

---- Made from unpasteurized milk, of a minimum fat contentof 50% by weight, in the dry matter, matured for at leastnine months, of a free-at-frontier value per 100 kg netweight of 334,20 Euro or more in the case of standardwhole sizes (cheeses of the conventional flat cylindricalshape of a net weight of not less than 33 kg but not morethan 44 kg; cubic block shape or parallelepiped shape, ofa net weight of 10 kg or more), 354,83 Euro or more inthe case of cheeses of a net weight of 500 g or more and368,58 Euro or more in the case of cheeses of a netweight of less than 500 g

---- Whole cheeses (of the conventional flat cylindrical shapeof a net weight of not less than 33 kg but not more than44 kg and cheeses in cubic blocks or in parallelepipedshape, of a net weight of 10 kg or more) of a minimumfat content of 50% by weight, in the dry matter, maturedfor at least three months

---- Other

--- Edam

---- Norwegian

---- Other

--- Tilsit

--- Butterkäse

--- Kashkaval

--- Feta

--- Kefalo-Tyri

--- Finlandia

--- Jarlsberg

--- Other

---- Cheese of sheep's milk or buffalo milk in containerscontaining brine, or in sheepskin or goatskin bottles

---- Other

----- Of a fat content, by weight, not exceeding 40 % and awater content, by weight, in the non-fatty matter

0406 30 90

0406 40

0406 40 10

0406 40 50

0406 40 90

0406 90

0406 90 01

0406 90 13

0406 90 13

0406 90 15

0406 90 17

0406 90 18

0406 90 19

0406 90 21

0406 90 21 10

0406 90 21 20

0406 90 21 90

0406 90 23

0406 90 23 10

0406 90 23 90

0406 90 25

0406 90 27

0406 90 29

0406 90 32

0406 90 35

0406 90 37

0406 90 39

0406 90 50

0406 90 50

0406 90 61

0406 90 61

Page 22: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Exhibit 5: Examples of Press Reports Using the term “gorgonzola” as a common name

https://www.news.com.au/lifestyle/food/europe-wants-to-stop-australian-cheesemakers-from-using-feta-and-gorgonzola-names/news-story/d12bd73380b3ca135be48888586430b1

https://www.cnn.com/2019/08/13/business/australia-eu-free-trade-intl-hnk/index.html

https://www.sbs.com.au/news/australian-cheesemakers-call-for-government-support-to-change-names-of-their-produce

https://www.theguardian.com/business/2019/aug/13/branding-cheese-as-feta-and-gruyere-may-

be-banned-in-australia-under-eu-deal

Page 23: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Exhibit 6: Examples of use of “gorgonzola” in Australian blogs

https://www.womensweeklyfood.com.au/recipes/cheese-and-spinach-tortellini-with-gorgonzola-sauce-13204

https://www.penguin.com.au/recipes/2310-gnocchi-gorgonzola-silverbeet

https://chefin.com.au/dictionary/gorgonzola/

Page 24: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

Important information regarding the receipt and handling of your submission

We will send a confirmation message to you when we receive your submission. We may also

contact you if we need to clarify matters in your objection.

DFAT reserves the right to release information publicly and/or to the EU, including any

information contained in your submission and supporting evidence, unless: (i) you indicate in your submission the parts of your submission and supporting evidence you do not wish to be made public or provided to the EU (noting the EU will need to be provided with your objection for

it to be considered); or (ii) you clearly identify it as commercial-in-confidence information. Consider including commercial-in-confidence information as separate annexures to the

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You will retain the ownership of any intellectual property rights in your submission. You consent,

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Before making a submission, please ensure you have read the information on the DFAT webpage applicable to submissions. If your submission contains commercial-in-confidence

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Why is DFAT collecting your personal information?

DFAT is collecting your personal information for the purpose of this public objection procedure to

inform negotiations with the EU on GIs and outcomes on GI protection.

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DFAT may use your personal information to:

• contact you about your objections, comments or supporting evidence

• consult with other Australian Government agencies, including IP Australia, and ministerial

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• inform the Australian Government’s decision about whether to recognise the EU’s terms

as GIs under the Australia-EU FTA.

Page 25: SUBMISSION TO OBJECT TO TERMS PROPOSED BY THE … GORGONZOLA Submission … · January 1897 that advertises Australian-made gorgonzola. Bodalla is a New South Wales- based dairy company:

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Disclaimer The submission of an objection or objections or comments will not determine whether an EU

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This objections process does not guarantee the protection of any of the terms identified as GIs under the Australia-EU FTA or in Australia.

The information in this public objections procedure is provided as a guide only and does not constitute legal advice. We encourage any person submitting an objection to contact a qualified legal professional.