Homeowner Forum / Lawn and Garden / September 2007

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.

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?

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To:
Subject: TerraCycle and Scotts Announce Settlement Agreement
From: "Lok, Su" <Su.Lok@Scotts.com>
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."

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