The Scotts Co. v The Procter & Gamble Co., 2:24-cv-4199 (S.D. Ohio June 27, 2025)
Miracle-Gro has an incontestable registration for a green and yellow rectangle depicted below (the cross-hatching being the Trademark Office color-designation code our tm lawyer ancestors labored under when designating colors in trademark applications):
Miracle-Gro sells a lot of plant food using this trade dress and in other green and yellow shaped packages, but it also sells some products that look like this:
Your marketing team at Proctor, wants to use this packaging for a weed killer:
Would you clear this packaging, in view of Miracle-Gro’s registration (and common-law usages)?
Before you answer, you should know: Spruce is a weed killer while Miracle-Gro sells, for the most part, plant food – although it does sell weed preventer. These are not competitive but might appear in the same aisle at Home Depot. Someone might use both products in a single day of gardening (that’s how the court put it).
Also: the shade of Miracle-Gro’s green is a light green reminiscent of a lawn, while the shade of Spruce’s green is, uh, spruce green.
Also, third-party usages in the categories include:
OK, Miracle-Gro goes for a prelim injunction. More facts: no instances of actual confusion. And the surveys showed confusion or no confusion, depending on who they were representing.
Held: Prelim denied. Scott has a low likelihood of success, as the trade dresses are too dissimilar.
-the greens are very different;
-the Spruce package has a transparent section;
-the proportion of green to yellow are meaningfully different;
-the use of different packaging by Miracle-Gro reduces the distinctiveness of its gree/yellow trade dress;
-the Spruce package has a big yellow dandelion; and
-the word SPRUCE acts a differentiating housemark.