At this Web site
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 /
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.
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,
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.
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
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
Again, thanks for giving us your thoughts.
Ref # 6540391
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!
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
(Amazon.com product link shortened)
1. Best book I've found on garden soil.
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?
Subject: TerraCycle and Scotts Announce Settlement Agreement
Date: Wed, 26 Sep 2007 11:01:59 -0400
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.
The Scotts Miracle-Gro Company
<<Picture (Metafile)>> <<Picture (Metafile)>>
TERRACYCLE, INC. AND THE SCOTTS COMPANY ANNOUNCE SETTLEMENT OF LEGAL
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."
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
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
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
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.
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