David vs. Goliath

At this Web site
http://suedbyscotts.com /
you will find details of an infamous lawsuit by Scott's against tiny Terracycle, a company that sells liquid worm poop.
Many of us use worm castings or liquid version in our gardens; we know how efficacious it is.
Why giant Scott's would take out after a tiny organic company that is no threat to their market share is hard to fathom.
But if you go to the Web site and read up on the history, you may be as upset as moi with the unfairness of the lawsuit. Perhaps you will take a minute to send Terracycle a message of support.
Camel is trying to get its nose into the tent...
Note: This came to my attention via the Jim Hightower newsletter. Jim is a good ole' boy who gleefully outs the "malefactors of great wealth", aka the bad guys, in his monthly newsletter. Go to http://jimhightower.com /
Persephone
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
Persephone wrote:

Terracycle's packaging is very similar is color and design to Scott's. Scott's is concerned that consumers will misperceive the Terracycle product for the more familiar Scott's and mistake it for a Scott's product.
But why this means that Scott's must destroy Terracycle is beyond me.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
Pennyaline wrote:

David is not always right and Goliath always wrong, but I read thru the legal filings and I think Scott's is gonna lose this one bigtime on the trademark abandonment issue.
Scott's must destroy Terracycle because J. Hagedorn (CEO of Scott's) is a self-proclaimed bully and is proud of it. I think he assumed Terracycle was too small to fight back.
Not a lawyer, Bob
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
zxcvbob wrote:

I was annoyed when Scott's acquired Stern's Miracle Grow, thinking only that a nice little product would be corrupted and ruined. But I was not aware then of the pogrom-like approach toward that acquisition. Hagedorn should have his head handed to him, and this might be the act of hubris that achieves it.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
wrote:

In reply to my email to them, I received a lengthy blurb from Scott's, see below.
It isn't very convincing.
Fahevvinsake, since when can't Product A claim it is superior to Product B!!!
Persephone
====
Date: Wed, 29 Aug 2007 18:13:45 -0400
Thank you for sharing your comments regarding the litigation between Scotts and TerraCycle. We at ScottsMiracle-Gro value your input and appreciate you taking the time to express your thoughts.
There has been a fair amount of misinformation in the media about the lawsuit. Since this has deflected from the true merits of the case, we felt it important to mention several points to help provide more context around the litigation.
Scotts was founded nearly 140 years ago and has built its business on providing quality lawn and garden products that consumers know and trust. Just 10 years ago, Scotts merged with Miracle-Gro, which was founded in 1951 by Horace Hagedorn, the father of Scotts current CEO, Jim Hagedorn. Miracle-Gro was a true entrepreneurial success story, so we respect and applaud businesses that, like TerraCycle, are characterized by an entrepreneurial spirit. The products they bring to the marketplace make for healthy competition in the lawn and garden industry, which is good for consumers and keeps us on our toes and prevents us from being complacent.
However, it is important that businesses in our industry (or any industry for that matter) regardless of size, speak the truth and not mislead the public with false statements, PR tactics and unsupportable marketing hype. We sued TerraCycle because it falsely claims that it is superior to Miracle-Gro. False advertising harms our business but is also bad for the consumer and the entire lawn and garden industry.
Another part of the lawsuit addresses similarities in packaging between Scotts and TerraCycle. In its public comments, TerraCycle has focused completely on Scotts' packaging-related claim and has circulated photos of products that are not even part of Scotts' lawsuit. A comparison of the packaging of the actual products at issue shows that TerraCycle's packaging is confusingly similar to Miracle-Gro's, which once again hurts our business and misleads and confuses the consumer. In addition, if we fail to act to protect the trade dress in which we have been investing for years, we risk losing the protections provided by federal trademark law.
Finally, TerraCycle might have you believe that ScottsMiracle-Gro is not active in the organic marketplace. The truth is, ScottsMiracle-Gro is a leader in this area. We recycle more than 3 billion pounds of organic material for use in our products every year. We also have an organic line of products, which includes lawn fertilizer, potting mix and plant food. For us, it's about giving consumers a choice. And whether it's organic or conventional products, we believe in educating consumers on the appropriate use of lawn and garden products in maintaining a healthy environment. If you are interested in learning more about our commitment to the environment, the following link will provide you with additional information.
http://www.scotts.com/scotts-sites/aboutscotts/index.cfm/event/socialres ponsibility
Again, thanks for giving us your thoughts.
Ref # 6540391
===================================
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Tue, 28 Aug 2007 01:49:50 -0600, Pennyaline

No it isn't -- similar, that is. Scott's doesn't have WORM POOP in huge letters on their packages! Go to both Web sites and you will see that Scott greatly exaggerates the "similarity"

They hope to destroy Terracycle because consumers that have half a brain will buy T. instead. Even so, most consumers don't have even 1/4 brain, and will keep on buying heavily-advertised chemical Scott. So the real reason isn't the packaging, obviously!
Persephone
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
wrote:

It may be rue that Miracle Grow has organic products but what I see are their fertilizer salts that can kill garden microbes that feed your plants and leave you stuck with a simple N-P-K to feed your malnourished plants. See (Amazon.com product link shortened) /ref=pd_bbs_sr_1/103-6184622-6467032?ie=UTF8&s=books&qid88451121&sr=1- 1. Best book I've found on garden soil.
--
FB - FFF

Billy

Get up, stand up, stand up for yor rights.
  Click to see the full signature.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Mon, 27 Aug 2007 15:09:52 -0700, Persephone wrote:

Update on the subject:
Sad to say, Scott's appears to have crushed Terracycle. Or am I misreading the below? From what I see, Terracycle agrees , inter alia, "not to claim that its products are better than, or more effective than, or as good as Miracle-Gro products."
Whatthehell? Since when can't a manufacturer say their product is better than another??
Any lawyers here to weigh in what appears to be a complete obeisance by TerraCycle to Scott's rear portion?
Persephone?
================================================= To: Subject: TerraCycle and Scotts Announce Settlement Agreement
Date: Wed, 26 Sep 2007 11:01:59 -0400 Bcc:
Earlier this year, you shared with us your comments regarding litigation between Scotts and TerraCycle. We respect your thoughts and opinions on the lawsuit. To help keep you updated on recent activity, we wanted to let you know that TerraCycle and Scotts reached a settlement agreement last week. The announcement was made in a joint news release, which is included below for your reference.
In the settlement, TerraCycle recognized that Scotts brought the case based on a valid need to ensure truth in advertising and agreed that it will stop claiming that TerraCycle products are superior to Miracle-Gro. More specifically, TerraCycle has agreed that it will not claim that its products are better than, or more effective than, or as good as Miracle-Gro products. Additionally, TerraCycle may not claim that any independent tests or university studies were conducted to support any such claims.
In terms of the trade dress, the Court recognized that the Miracle-Gro trade dress is a strong and famous trademark. TerraCycle has agreed to change its packaging so it will not use a green and yellow color combination, for which Miracle-Gro owns a trademark registration.
While there was a fair amount of publicity regarding the litigation, we felt it important to make you aware of the merits and outcome of the case. Scotts appreciates businesses like TerraCycle and the products they bring to the lawn and garden marketplace. We wish Mr. Szaky and his colleagues much success in the future.
Su Lok The Scotts Miracle-Gro Company
<<Picture (Metafile)>>      <<Picture (Metafile)>>
TERRACYCLE, INC. AND THE SCOTTS COMPANY ANNOUNCE SETTLEMENT OF LEGAL DISPUTE
MARYSVILLE, Ohio, and TRENTON, New Jersey (September 21, 2007) - TerraCycle, Inc. and The Scotts Company have announced the agreed settlement of their legal dispute regarding false advertising claims and trade dress infringement. TerraCycle has agreed to change certain advertising claims and its package design to avoid possible confusion, and Scotts has agreed to dismiss its false advertising and infringement claims. Tom Szaky, the founder and CEO of TerraCycle today said, "We recognize that Scotts filed this lawsuit based on a legitimate need to uphold the accuracy of advertising claims and protect its trademark rights. We also regret certain statements that were made about Scotts in the heat of litigation. Now that the parties have resolved their differences, TerraCycle is looking forward to providing consumers with an array of garden and lawn care products in the marketplace." Jim King, Scotts spokesperson, said, "Scotts is pleased to resolve this case and believes that the settlement serves the public's interest in ensuring the accuracy of advertising claims, as well as protection of the valuable Miracle-Gro brand."
=============================================
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
Persephone wrote in

you are not allowed to mention other products by name, since at least the 1970s.

it looks to me like TerraCycle couldn't afford to continue trying to fight. they made a settlement, which means the case was not decided by a court, but rather between the parties lawyers. i would rather have TerraCycle back down a bit, change the color of their packaging & not mention Miracle-Gro, and still keep their product on the market than have them get all self- righteous & go bankrupt tilting at windmills. let's face it, Scotts has a lot more money to fund a lawsuit than TerraCycle does! lee
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload

That isn't true, if it was it would be a violation of the 1st amendment.
What you aren't allowed to do is make concrete claims about another company's products, unless you are merely repeating the results of a peer-reviewed academic study that was done which actually showed this - in which case your to refer to the study, not state the claim as fact.
You also aren't allowed to use another company's trademarks to sell your products without paying them, even if your unfavorably comparing them, that is still using their trademarks without permission. Such use in a commercial does not fall within "fair use"
The usual way advertisers get around this if they feel a compelling need to make unfavorable comparisons to a competitor, is to use testimonials. They find some Joe Citizen willing to go on record saying nasty things about the competitors products and use the testimonial in their advertising.
However, most advertisers believe testimonials relegates them to the same group as the midnight Ginszu Knives As Seen On TV crowd, and they also feel mentioning the competitor at all is just giving free advertising to the competitor. That is why they usually avoid mention.
Ted
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On 9/29/07 3:56 PM, in article Xns99BAA222C4C8Denigmaempirenet@199.125.85.9,

Well said.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload

I don't read it that way. Terracycle gets the free publicity of having been sued, and then gets to settle pretty cheaply. And both sides get to avoid all the lawyer bills and pointlessness of continuing to fight.
Unlike many lawsuit settlements, the terms are public, and are online at http://suedbyscotts.com/ (for 3 months after the settlement, after which the website will go down). Terracycle gets to sell off their existing inventory with the contested package design (as long as they can do it within 6 months). There are some limits on what they can claim about scientific studies unless they prove it (I haven't been following the litigation closely enough to know exactly what their claims had been).
Like I say, I haven't looked at the thing closely enough to say whether each and every thing which Terracycle agreed to is actually "right". But none of this will harm their business much. I don't see any of the limits on designing their packaging, their advertising claims, etc, as being crippling ones.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload

Related Threads

HomeOwnersHub.com is a website for homeowners and building and maintenance pros. It is not affiliated with any of the manufacturers or service providers discussed here. All logos and trade names are the property of their respective owners.