MiracleGro Sues Sellers Of "Worm Poop" For Trademark Infringement

TerraCycle a small, not yet profitable, organic fertilizer company based in lovely Trenton, New Jersey is being sued for trademark infringement and false advertising by the manufacturers of MiracleGro. The complaint stems from TerraCycle’s use of the colors yellow and green in their packaging. TerraCycle sells organic liquefied “worm poop” packaged in donated plastic soda bottles. Scott’s is a $2.7 billion dollar company, according to the Wall Street Journal.

The whole lawsuit seems rather silly to us. Would consumers really think that MiracleGro would sell something labeled “Worm Poop” in what is quite obviously an old Sprite bottle? TerraCycle is claiming that the lawsuit is groundless because so many other manufacturers use yellow and green in their packaging. They also refuse to turn over test results that extol the benefits of liquid worm poop to MiracleGro, because MiracleGro refuses to turn their test results over to TerraCycle.

For more info on the lawsuit, TerraCycle has set up a website. If that seems biased, we’re sorry. Scott’s, makers of MiracleGro, haven’t yet set up their own anti-TerraCycle website. Perhaps this is due to all the business that worm crap in soda bottles is taking away from them. They just can’t afford a 10th grader to set up an account on Blogger. You can, however, read their complaint on TerraCycle’s site should that be your desire. —MEGHANN MARCO

TerraCycle sued by Scotts Miracle-Gro [SuedByScotts via AdviceGoddess]
(Photo: TerraCycle)

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  1. Brendoon says:

    This is insane. I am no law-expert, but I am pretty sure using yellow and green on your product doesn’t exactly make it a copyright violation.

    The more I look at those pictures, the more insane the lawsuit seems. I hope a judge slaps Scott’s around for this obvious waste of the courts time.

  2. partyone says:

    Good grief! Does this country need any more ridiculous lawsuits? I could understand if Terracycle was infringing on Scotts’ patents. Should Pepsi sue Coke because their bottles are shaped similarly and have red in the logo? Stupid, that’s all I can say.

  3. mantari says:

    It sounds like they have a legal department that they’re paying some good bucks to in order to proactively go out there and find things that even start to encroach on their turf.

    I remember one ISP who’s name was “Internet [State name]“. They threatened any other provide who used the word “Internet” along with the name of that state, anywhere in their logos, advertisement, print, etc.

    Publicity and public shame really has an affect on a business when their legal team gets a bit out of control.

  4. gwong says:

    Sounds like Scotts is scared of even the tiniest bit of competition. What, are they hoping to cut TerraCycle off at the knees before they beat them out in market share? They’re not even profitable yet!

  5. You can’t copyright colors! Those two bottles look nothing alike.

    Makes you think there’s something to using worm poo as fertilizer.

  6. tigerjade says:

    You guys might not want to choose sides, but I am. As of today, this household is boycotting Scotts until they use that fertilizer of theirs to grow a brain.

  7. nonowellokay says:

    In the few minutes I have before I go to work, I couldn’t read this post and do nothing, so I sent this comment to Miracle-Gro at http://www.miraclegro.com/index.cfm/event/ContactUs.showFo

    I have read on consumerist.com that Miracle-Gro is suing Terracycle for trademark infringement. I was very distressed to read this. I have been a long-time customer and Miracle-Gro and have not ever purchased a product of Terracycle, though I do support the Terracycle plastic bottle recycling program at my place of employment, Home Depot. It is my sincere (yet flimsy) hope that your lawsuit is not an effort to drive this not-yet-profitable company out of business though I fear that that will be the end result. If this does happen, I vow to never purchase another Miracle-Gro product again, and to discourage the same to all within my power. It is sad for me to see that my most peaceful, even zen, pasttime which gives me no much pleasure in life is now tinged with the unhealthy green of corporate jealousy and brutal corporate tactics. I have had a long relationship with Miracle-Gro, but you’re not the company I thought you were.

  8. DashTheHand says:

    I’ve copyrighted the color black, and the lack of color: white. Just to be safe I’ve also copyrighted clear. This covers all visible spectrum. Everyone owes me money.

  9. Trai_Dep says:

    Gasp… The Worm Food guys also use the word “plant” in their packaging!
    Sic ‘em, Scott’s!

  10. phrygian says:

    After reading more about Terracycle, I’m going to pick some up this weekend. (I found out that they sell it at the Target I frequent.) I need some fertilizer for my veggie garden and I’d much rather use “worm poo” than chemicals.

    @nonowellokay: Thanks for the link. I’ve bought Miracle-Gro products in the past, but this type of corporate behavior ticks me off. I’m going to let them know…

  11. WindowSeat says:

    More lawyers on retainer trying to justify their miserable existence. Go Terracycle! Miracle-Gro is garbage anyway, induces too much growth and leaves a plant vulnerable to aphid attack. I’ve never had an aphid problem since I swore off Miracle-Gro years ago.

  12. kmccoy says:

    There’s a difference between copyright infringement and trademark infringement. And sometimes colors can play an important role in trademark infringement (imagine a home improvement store with a heavy use of orange in its logo and a similar font to that of The Home Depot.) Not to say that I agree with this case — it seems like bullying.

    That being said, this brings new meaning to Trenton’s bridge:

    Trenton makes (liquified worm poop), the world takes (liquified worm poop).

  13. I bought some of this worm poop to use on my good intentioned attempt at a potted herb garden and I must say, I now have 6 or 7 basil plants that I started from seed that are growing like mother f-ckers. MiracleGrow might actually need to be worried about these guys.

    Also, would anybody like some pesto because seriously, I have a ton of basil.

  14. not_seth_brundle says:

    @kmccoy: Agreed. Not copyright, people — trademark. Color has been the subject of many trademark disputes. Post-It Notes, for example. But the less arbitrary the color, the more difficult it is to get trademark protection. Green is obviously going to be a logical color choice for products relating to plants.

  15. mantari says:

    @kmccoy: LOL – “Car Mart” — Seen one of those dealerships? I’m surprised that Wal-Mart didn’t run them into the ground.

  16. hollerhither says:

    Terracycle is at least getting some free advertising, courtesy of Scott’s, until the lawsuit is thrown out of court.

  17. The_Shadow says:

    Before everyone runs of half-cocked. I recall that last year the “Worm Poop” was sold in vastly different packaging [largely green if I recall correctly] – and this year they had changed their packaging to a yellow and green color scheme.

    A few weeks ago I was at Home Depot and took extra notice of TerraCycle’s product because it reminded me of Miracle-Gro [and partly because 'worm poop' was no longer writ in large letters].

  18. Michael Bauser says:

    @Rectilinear Propagation: But the U.S. government does let companies trademark color/product associations in those instances where the company demonstrates the color is used to distinguish the product from its competitors.

    http://www.ladas.com/BULLETINS/1995/0495Bulletin/US_ColorT

    The easiest example to grok is probably Owens Corning, who got a trademark for pink fiberglass insulation. Remember their Pink Panther commercials? That’s a textbook example of making color part of the product identity.

    That said, I’m skeptical of Miracle Gro’s case here. Using a yellow label on a green bottle doesn’t seem like a disinguishing feature to me. But I’m not a lawyer.

  19. phildeaux says:

    I read it and the Scott’s complaint is laughable. Let’s just say that the attorneys were earning their retainer. They’ve got some gifted fiction writers.

    Even more laughable is how this has backfired on Scott’s. I had never heard of this organic plant food before. I sure have now. And when I need to buy some plant fertilizer, I sure as heck am not going to buy miraclegrow.

    Who roots for Goliath in a David v. Goliath case?

  20. MalichiDemonos says:

    How dare they create competition. Maybe Apple should get in on this where there own brand. “I’Poo”
    Sorry, bad joke I know…

  21. 5h17h34d says:

    On another note… where can I get the sprayer adapter for pop bottles?

  22. QuirkyRachel says:

    Ok, those bottles really don’t look alike. Are they saying now that color combinations are trademarked? Does that mean that no one else is allowed to use yellow because McDonald’s does?

  23. MalichiDemonos says:

    Would you like a MC’Poo with that?

  24. Onouris says:

    Completely different colours, absolutely no similarities in name. You’d have to be an absolute moron to confuse the two.

    I would absolutely love to laugh this one out of court.

  25. Prosumerist says:

    Buy from a small organic company AND boycott a large greedy corporation shilling chemicals? Must be my lucky day!

  26. homerjay says:

    As an organic landscaper, I can attest that this stuff is for real and it kicks ass. Scotts SHOULD be scared. Of course, that doesn’t justify them going out and being dickish with their money and position in the market. I guess they’ve just learned that trait from the best around- Monsanto.

  27. SOhp101 says:

    @Michael_Bauser: Yes the US government does, HOWEVER they have to be very specific shades, not just ‘green’ and they are only copyrighted to that particular business. For example, although UPS does have their color of brown copyrighted, a food company using that brown in their packaging likely won’t need to pay any lawsuits.

    Miracle-Gro can’t just say ‘green’ and ‘yellow’ is our color combination so you can’t use that. It has to be the same shade of green and yellow otherwise their case is going to be extremely weak.

  28. lilyHaze says:

    It’s not even the same color scheme. If the pictures are right, MiracleGro has a bright green bottle with a bright yellow bottle. The TerraCycle people have a darker yellow with normal green (like the color of grass) accents. TerraCycle even have other colors (the plants) on the bottle that are also dominant.

  29. healthdog says:

    @nonowellokay:

    You inspired me; I sent them a similar missive. Suck it, Scotts!

  30. Chicago7 says:

    Maybe we could get John Deere to sue Miracle-Gro.

    Those look suspiciously like John Deere colors to me! They are in the same business, dirt.

  31. Recury says:

    Just to play devil’s advocate, it looks like someone went nuts with the color balance on those photos. The Terra-Cycle one looks really desaturated and the Miracle-Gro one looks like it’s glowing or something. Probably not intentional but I’m sure they could be made to look closer than they do there.

  32. Little Miss Moneybags says:

    Y’know, that miracle grow bottle looks an awful lot like my Tide detergent bottle. I mean, the colors are different, but the bottle shape is the same! I’m going to tell Tide!! That lawsuit would make MUCH more sense to me than this one.

  33. rogue says:

    I have a friend who swears by worm juice here’s some results from his highly unscientific (but trustworthy as far as I am concerned) study.

  34. rogue says:

    I have a friend who swears by worm juice here’s some results from his highly unscientific (but trustworthy as far as I am concerned) study.

    http://www.naivezebra.com/?p=1172

  35. royal72 says:

    @rogue: me too and it’s called mezcal :)

    ps. fuck you miracle grow. if i do ever take up gardening, i won’t be using your products.

  36. Jiminy Christmas says:

    When it comes to frivolous lawsuits the first thing that leaps to mind for most people is whiplash or some other personal injury claim. Truth is, business vs. business suits like this one are more common. Remember that the next time you hear some corporate lackey yammering about ‘tort reform.’

    In the meantime, it sure looks to me that Scott’s is the 800-pound gorilla trying to bludgeon start-up TerraCycle to death with the legal process.

  37. atbradley says:

    @The_Shadow: Actually, TerraCycle’s description of the lawsuit, on their website, makes it sound a lot more reasonable thanthe Consumerist’s does. It doesn’t matter that the bottles don’t look the same sitting right next to each other; what matters is, if I’m looking around the garden department for a bottle of Miracle-Gro, and I see a green bottle with a yellow label with a big black circle on it, there’s a good chance I won’t look close enough to realize I’m about to buy worm poop.

    Also, “Scotts also objects that TerraCycle says its plant food is as good or better than “a leading synthetic plant food” and is refusing Scotts’ demands that TerraCycle hand over its scientific tests conducted at the Rutgers University EcoComplex to Scotts’ scientists and lawyers. Scotts refuses to turn its tests over to TerraCycle.” Well, Scotts isn’t making the claim. Terra-Cycle is. Should they be exempt from proving their advertising claims, just because they’re a small business?

  38. atbradley says:

    I also take an instant dislike to businesses that request donations:

    “We request your help

    3. You can also contribute directly to the TerraCycle Defense Fund (not tax deductible) through PayPal. Click on the button below to donate to the TerraCycle Defense Fund.”

    I don’t know who’s in the right here, but that line alone is enough to get me to boycott TerraCycle.

  39. atbradley says:

    Also, I have to say that few things annoy me more than a business asking for donations (from suedbyscotts.com):

    “We request your help

    3. You can also contribute directly to the TerraCycle Defense Fund (not tax deductible) through PayPal. Click on the button below to donate to the TerraCycle Defense Fund.

    Or mail to TerraCycle Defense Fund, 121 New York Avenue, Trenton, NJ 08638-5201″

    That alone earns TerraCycle a boycott from me.

  40. The_Shadow says:

    @atbradley: LOL – Guess I wasn’t as clear as I could’ve been. Yeah – that was what I was trying to say [IE the new labeling makes TerraCycle's product look similar to Miracle-Gro].

  41. Firstborn Dragon says:

    I saw this stuff last year, and it looked just the same.

    I read though a LOT of the stuff on that site.

    Green and yellow are shown on several diffrent garden products. ‘Gasp’! We going to see Miracle Gro go after ALL of them?

    Also intresting to note is they caught up a lot of lies in MiracleGro’s ads. Not saying I approve of the situation, but given the situation one side seems to be lying though it’s teeth about it’s ads, and the other MAY be lying.

    Also by the sounds of it, the walmart photo was set up.

    I’m not so sure what to think. Other then MiracleGro is playing hardball here against a small time player.

  42. Smashville says:

    I bought MiracleGro thinking it was Mountain Dew. The green bottle confused me. Pepsi should sue them.

  43. E-Bell says:

    The comments about the difference between trademark and copyright are spot-on, as are the protections that are sometimes afforded color schemes.

    What is missing from this thread, however, is the fact that very often, trademark-owners are faced with the dilemma of how to protect their marks. If Scott’s does not prosecute potentially infringing companies, they may lose protection in the future.

  44. TinaT says:

    Sure, companies can trademark colors, but I don’t think you can trademark the most obvious color for your product. Ketchup logos are always going to have red, logos for banana flavored products are always going to have yellow, and gardening products are always going to have green.

  45. palaste says:

    @Onouris: They probably tried first to copyright the whole concept of fertiliser but then found out that they can’t just do that, they need something a bit more specific.