to talk about certification marks congress created certification march for the benefit of the little guys the ultimate consumers for example want to go into the store and buy a toaster or a lamp and make sure it's a lamp for the toaster and i want to like to keep the kids when i plug it in certification mark owners do not and cannot profit from the goods sold with them are just there off a nonprofit corporation it was for government agencies labels there is no public interest in encouraging a challenge that would lead for example the passing certification march in the public domain because once the certification mark pass which is a public domain you've lost the most valuable formal license you know and i think i think the reason why is that if you look at the history of challengers to marsh trademarks or sure the case in march the challengers come from people who are former licensees so where did the second circuit go wrong they went wrong by turning to larry which was at the facts a litter of earth very interesting and entirely different from what we have here and where you had an agreement between the they did not maintain or over three thousand invoices out of the out of a bunch of about fourteen thousand well over twenty percent of their voices were not maintained so that's what the district court was talking about well you're telling me what they were talking about that they actually talk about it the district court does not explicitly refer to the three thousand and forty thousand they talk about the play to preserve records that is in the findings is that adequate i believe is adequate if not wholesale application of lir it was simply looking to the lear principles and saying they apply in this context under the lanham act as well we don't do not want to cut off its certification mark owner client was somehow the wrong doer in this case my client who was accused of misbranding over two million pounds of potatoes which started a federal lawsuit which got trial and those claims fell flat on their faces my client did nothing wrong my client was licensed to use the famous grown in idaho the idaho potato mars to use to differ over thirty years and then false accusations that my client was misbranding potatoes come on you can certainly understand why my client intervened in the action in the southern district of new york because i don't potato commission to fight and made what eventually turned out to be completely unfounded allegations against my client if anything my point here is that  we making the same challenge there just a little history that case the lawyer for consolidated cases in the southern district of new york they started with the idaho potato commission bringing an enforcement action against one of the other p and you're basically saying well they don't exercise their authority that well and under those circumstances people need to be able to challenge it yes i understand under those principles that i think the second circuit recognized who else is really realistically in a position to challenge and i heard the suggestion from counsel that the federal trade commission or the trademark office i mean that's not realistic it's the people that are adversely affected by this in position that the idaho potato commission these allegations that turn out to be false those are the entities that need to be tasked with bringing the necessary court action and that is simply what the second circuit agreed they should have the right to do contract chan sixty four ten fifty four i'm sorry that i don't recall exactly the vision so it does recognize if you will the ability for my client or other certification mark users that have been kind of wrestling with that throughout this case and the validity of the mark in the sense that if there is a way to attempt to prevent the potato commission as the certification mark owner from it's what i call overzealous enforcement it is through attacking those the liturgy of the more i'm not saying that there might not be other causes of action if you go along with that but if they overzealous limit you know concern that or and in the sense that they don't what they don't have under the lanham act is the ability to impose any other qualifications to the use of the market other than my client and anybody else that wants to sell genuine  put the plaintiff the potato commission had the burden of proving its case and the fact is that the civil kinds of penalties that the district judge awarded is a civil penalty that is permitted identify the variety of the fish on our hackett chain which is what the one dollar was awarded for that they didn't come specifically and say we need this amount of money for the failure to do that there were some co thousand well you know this is the record keeping award first of all there's a good example of what the idaho potato commission did not cheat they only saw it in their in their proposed findings and conclusions they only saw an adverse inference they never saw any specific damage you know in all due respect to judge carter i don't know where this fifty thousand dollars came up from i think i think he must have just kind of figured there there must some significance to fifty thousand dollars but there was absolutely no evidence put on trial about damages that might that the idaho potato commission had suffered by virtue of  alleged failure to keep all of the documents and now there is there is evidence that does this need every man for clarification are you i mean you obviously don't want  thousand what he's talking about wasn't you know thousands of saviors of record if you will but the problem is that he never put on any evidence how that somehow affected them and their claims in this case they tried to make a big deal out of it in the court and we explained to put that into a little context that they never cause that we related it to any damage here and that's where there is this gap that i see can i explain how the trial judge came up with this fifty thousand dollar figure and the other issue is that we we honestly do believe that we complied with the requirements for maintaining the records we've turned over thousands and thousands of pages of records not only in response to document production requests but also in response to subpoenas in the m and m case that we were involved in my to the counsel for jeanty who kind of oversaw those record production efforts here in the courtroom today i mean i can't argue that in many circumstances that would just be completely unlawful but under the facts of this case where my client again is wrongfully accused of misbranding false does of nation of origin and that's where this seven year battle in federal court ends up my clients continuation of packing idaho potatoes and identifying them as idaho potatoes where is the confusion for the public where is the confusion to the consumer there is none now the potato commission our views and i'm sure we're going to hear counsel argue that the confusion is in our ability to control our mark well that is a very circuitous argument because yes the commission like any other certain certification mark owner has the ability to control its market but it is really it in this case when there is no dispute the tables that we were selling were idaho potatoes so regardless of the fact that the idaho potato commission says well you know we have to have your license and we have to have your well you know you may plead not guilty but you might get farther if the expiration was due to some lawful afshan by say the motor vehicle license department actually no violation even in we are not selling non genuine good judge could if he had some evidence free basis on which to award fifty thousand dollars damages that he could do that that he has the authority the power to do that but again the first you ever heard fifty thousand or we have to go we have to get it from you know from the person the consumer we have to copy it we have to do this and there were fifty of them that were not properly kept there for fifty thousand was there i mean was there any testimony like that that could