(July 21) BOISE, Idaho — A six-year legal battle between a New York potato repacker and the Idaho Potato Commission over the legitimacy of the commission’s certification marks will continue — perhaps for years.

One side claims that the certification marks, which feature “Idaho Potatoes,” the “Grown in Idaho” seal, and an image of Idaho, are not private property and, thus, not subject to the commission’s control.

The other claims that the marks are, indeed, registered as property of the commission and may be used only under the authority of the commission.

Whatever the courts ultimately decide could determine the future of the Boise-based commission, according to one of the attorneys involved in the case.

On July 14, a three-judge panel from the U.S. 2nd Circuit Court of Appeals ruled that the commission’s infringement lawsuit against Goshen, N.Y.-based M&M Produce Farms & Sales will go to trial at a date yet to be determined.


If the certification marks are ruled invalid, they become part of the public domain and available free of charge to anyone, insists J. Joseph Bainton, an attorney representing M&M.

Such a ruling, he adds, could choke the relevance — and a major revenue source — of the commission and perhaps put it out of business.

“If you take the marks away from the IPC, its ability to have a licensing program, to extract fees from its licensees and to own and exploit the certification marks, what’s left? Their recipe book?” Bainton asks.


The legal battle surrounds a commission contention that M&M, a repacker run by brothers Matthew and Mark Rogowski, misidentified potatoes it sold as coming from Idaho.

The validity of the certification mark is not at issue in the case, said Pat Kole, the commission’s full-time attorney.

“The part that he is arguing is simply not in this case, and the assertion is totally without merit.” Kole said. “But if you look, the assessment is set under state law. It has nothing to do with federal law whatsoever. It is based on 10 cents per cwt. And it is allocated 6 cents to the grower and 40% to the next handler.

“Currently there are processors who don’t use the mark at all but pay the assessment because the assessment is independent from the mark.”

The case is simply a matter of M&M mislabeling product, Kole said.

The first stages of the next round of this long legal bout should get under way before the last week in July, Kole said.

“I suspect that this could go on for another couple of years,” he said.