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Idaho Fry

Idaho Fry Co. in Boise

Over a good many years, several key Idaho people and organizations did something unusual and remarkable and that wouldn’t have happened by itself: They developed a specific commercial identity for Idaho potatoes, as products of particular quality and therefore worthy of higher price. There’s some real value in that, and some commercial need to protect it.

What might threaten it? If the quality of the state’s potatoes were to be diminished, that might hurt. So might false claims from someone else, a producer in some other state who labeled products from there as Idaho potatoes – that would inflate the size of the crop sold under the label, and might damage the quality levels. The Idaho Potato Commission has each of these possibilities seriously over the years in the defense of Idaho potato growers and protection of their long-term investment in brand building: If you’re going to sell something as an “Idaho potato,” you have to meet certain standards and follow certain rules, and there are legal avenues for enforcement.

There appears to be, generally, some clarity about that. On its website, the Potato Commission specifies “Who Should License With Us,” and lists three criteria:

Any company or individual packing fresh Idaho® potatoes. This is required by Idaho statute.
Any company, organization, or individual intending to use trademarks or certification marks owned or administered by the Idaho Potato Commission. This is required by Idaho statutes and Federal trademark law.
Any container manufacturer or company who reproduces IPC’s trademarks or certification marks.

Which seems reasonable enough. How the Idaho Fry Co. fits any of that can be explained only by a wild imagination or by a very creative trademark lawyer.

This business is a small restaurant (allowing takeout) located not far from downtown in Boise (even closer to the Potato Commission’s offices). Its focus is on potatoes, to be sure – French fries specifically, which are sold in a variety of formats (thick, stringy, curly, fixed with various oils, and so on), and loving attention seems to be paid to them. The burgers, and other foods, really are “on the side.”

Although they’re potatoes, there’s no statement anywhere we could see, outside the store, inside, on menus, on line, that any of these are Idaho potatoes. In fact, considering the variety of potatoes used, a number of them probably couldn’t be Idaho in origin. The “Idaho” in “Idaho Fry” clearly refers to the geographic location of the store. It does not pack potatoes and it does not use any Idaho potato trademarks (see the criteria above).

All of that notwithstanding, the IPC has loosed the legal dogs against the Fry Company: “a business card was slipped beneath our door with this cryptic message scribbled on the back: ‘Blake – This name is a problem. Idaho™ is our trade name.’”

That’s a pretty sweeping claim, and enforcing it pushes the Idaho Potato Commission far beyond simply protecting the good name of Idaho potatoes. It seems to be saying that you can’t use the word “Idaho” in a business name, if potatoes – whether or not Idaho-grown potatoes are even involved – has anything to do with the business. Does it mean that any restaurant using the word “Idaho” in its name and which sells potatoes with a meal could be at legal risk? (Maybe they should all drop potatoes from the menu just to be safe.) Maybe the Idaho Statesman newspaper had better check its vending machines to make sure they aren’t dispensing any potato chips. Thanks to the obscenity that is current trademark law, there is actually the potential for a legal case along exactly these lines; you could patch together a legal case for the Commission. But is this threat to in effect shut down a small new business really protecting anyone? Is it doing any good?

Suppose the Idaho Fry Co. decided it was selling fried chicken instead, with mashed potatoes – would the business name be a problem then? How about if they sold no potatoes at all, just something else that was fried? Suppose they called it the Not-Idaho Fry Company, with signage guaranteeing no Idaho potatoes are sold here, only potatoes from other places – would that be a problem? If it would, why exactly? How would the good name of Idaho potatoes be besmirched (unless you draw an implication that people were, for some reason, avoiding them)?

The commission’s CEO, Frank Muir, set out his case in the Statesman this week, which most centrally comes to this: “If the commission fails to protect its certification mark, it is in jeopardy of losing it.” That would be true. It would also be relevant if the Idaho Fry Co. were in some way appropriating it, but, simply, it isn’t. It isn’t using the mark and it isn’t advertising that it is using Idaho potatoes. On any moral or ethical ground (legal, admittedly, could be another matter), the commission’s argument fails decisively.

And maybe common sense is telling people as much. Business was good the other night at Idaho Fry; controversy may have helped. And the fries were good; burger too, for that matter. So one other business option comes to mind: If the Idaho Fry Co. people find that the legal environment in Idaho is getting too hot, they probably could successfully relocate to Oregon or Washington, which might be more welcoming to their business than Idaho seems to be.

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