Grass Seed Companies Fight Over Ads

In this Lanham Act suit involving competing companies’ challenges to various advertising claims relating to both parties’ grass seed and combination grass seed products, a Richmond U.S. District Court reaffirms that defendant Pennington Seed’s “twice the seed” and “2X the seed” claims are misleading, but denies Scotts Company LLC’s motion to show cause claiming defendant has violated the court’s decree.

Regarding defendant’s “Twice the seed claims,” the court found that the weight of the evidence supports the conclusions that 1) Twice the Seed and 2X the Seed claims are false and misleading because an actionable number of consumers will interpret a claim of Twice the seed and 2X the Seed to mean twice the seed by number; and 2) defendant’s Twice the seed and 2x the seed claims are false when measured by number, as determined by every count and estimate conducted by either Scotts or Pennington. The Jacoby Survey supports these findings. The Twice the seed and 2X More Seed claims have been withdrawn from the marketplace.

Still at issue is the “no filler, twice the seed vs. coated seed” claim. This claim appears to be true by weight, but even if ambiguous, the Jacoby Survey does not extend to the untested “no filler …” claim.

Thus, Scotts has failed to carry its burden of proving that the claim “no filler …” is false and misleading. The only survey evidence Scotts has proffered in this case is the Jacoby Survey, which tested the claim in Pennington’s withdrawn television commercial that Pennington “put in twice as much seed” into 1 Step Complete as compared to EZ Seed. This court gives this survey no weight as a result of its lack of connection to the specific advertising claim at issue.

The court has held and now reaffirms that the “twice the seed” and “2X the seed” claim are misleading.

The American Tradition commercial makes the claim: “And as part of our tradition. Twice the seed and no filler. Scotts can’t say that.” Previously the court was unable to conclude that the “no filler, twice the seed versus coated seed” claim was misleading because of a failure of proof. Dr. Jacoby only conducted studies on the “twice the seed” language without any qualifiers. His studies tell us nothing about the effect of the “no filler” and “twice the seed” language combined. The court recognizes the claims are similar and it is possible that further studies might confirm these claims to be misleading as well. However, the court cannot simply assume a result. Scotts has failed to establish that Pennington has violated the terms of the court’s decree.

Motion to show cause dismissed.

Scotts Co. LLC v. Pennington Seed Inc. (Spencer) No. 3:12cv168, April 16, 2015; USDC at Richmond, Va. VLW 015-3-188, 4 pp.