Sixth Circuit cuts down trademark challenge to Procter & Gamble weed killer products

CINCINNATI (CN) — A green and yellow color combination is not distinct enough to warrant trademark protection for Miracle-Gro products, and the Spruce line of weed killers marketed by Procter & Gamble isn’t likely to confuse customers, the Sixth Circuit ruled Thursday.

In its unpublished opinion, the unified panel of judges upheld a federal judge’s earlier decision to deny the Scotts Company’s motion for a preliminary injunction.

The Ohio-based chemical company — known primarily for its Roundup weed killer — sued Cincinnati-based P&G shortly after it launched Spruce, a line of weed killers and other lawn care products.

Scotts claimed the green and yellow packaging of P&G’s Spruce products infringed on its trademarks for Miracle-Gro plant food, but a federal judge disagreed.

The case was argued before the Sixth Circuit in April.

U.S. District Judge Douglas Cole, a Donald Trump appointee, pointed out in his initial opinion that various other lawn care companies use similar green and yellow color palettes, and Senior U.S. Circuit Judge Danny Boggs echoed that sentiment in Thursday’s opinion.

“As the District Court appropriately noted, even though Scotts has invested ‘substantial effort and large sums of money over an extended period of time’ in promoting the trade dress, ’there’s nothing particularly distinct about using green and yellow for packaging in the lawn care industry,’” the Ronald Reagan appointee said.

Scotts took issue with Cole’s decision to compare the products side-by-side in his courtroom, but Boggs found no problems with the lower court’s approach to the case, which he described as an “assessment of the ‘general impression’ created by the two competing packages.”

Boggs went on to criticize Scotts for seeking to protect a specific ratio of yellow and green — one-third green on top and two-thirds yellow on the bottom — while simultaneously defending some products that utilized an entirely separate color ratio.

“Scotts can’t have its cake and eat it, too; either the yellow-and-green combination is distinct from the many other green and yellow products on the market because of its specific ratio, or it isn’t nearly as distinct as Scotts claims,” he said.

In a final blow to Scotts’ trade dress infringement claim, the panel upheld Cole’s decision that the competing products were “only somewhat related.”

The appeals court agreed with Cole’s analysis that while Spruce and Miracle-Gro are both lawn care products, they do not compete directly.

Scotts’ trade dress dilution claim was likewise rejected by the panel, which determined the lower court’s finding on the similarity of the products made the claim a nonstarter.

“The District Court’s determination that the Spruce packaging and the Miracle-Gro trade dress were ‘highly dissimilar’ was sufficient to hold in this case that Scotts was unlikely to succeed on the merits of its trade-dress-dilution claim,” Boggs said.

Neither party immediately responded to requests for comment.

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