Can a company “own” green?

If you’re following this blog, you know I initiated a series of blogs about color in branding.

Now, color has made the business section of the Denver Post.

Al Lewis of the Denver Post (www.denverpostbloghouse.com/lewis) has written about an upcoming case which should interest everyone involved in branding.

It seems that the giant lawn and garden products company, Scotts Miracle-Gro doesn’t want a competitor to use green in their trade dress. They’re suing TerraCycle to cease and desist from using green and yellow in their packaging and “confusing the market” with similar packaging to Miracle-Gro.

The packaging is not at all similar to my eyes.

I’d download pictures of the respective packages and put them side-by-side except the TerraCycle has used a “gimmick” to demonstrate their environmentally-friendly packaging – used, recycled plastic pop bottles – and they show it’s origin by morphing the TerrCycle label into a pop bottle as you “mouse over”. Anyway, here are the corporate urls of each so you can make your own comparisons.

http://www.terracycle.net/products.htm

http://www.miraclegro.com/index.cfm/event/ProductGuide.category/category/%2FCategories%2FProducts%2FMiracle-Gro+Plant+Food

The point is there is no similarity in type, design, shape or name of the competing products. The only similarity is the color combinations. So can Scotts “own” those generic colors. I’m pretty sure the Pantone numbers are not identical, and they aren’t used in the same proportions.

Now to be as forthcoming as I can, there’s another issue in Scott’s suite – they take issue with the TerraCycle claim that their Worm Poop (yes, that’s what they call their product, probably because of its main ingredient) is superior to the “leading synthetic plant food”. That’s another debate.

Al quotes Tom Szaky, CEO of TerraCycle, who thinks “this is more about the fact that we’re taking shelf space at Home Depot and Wal-Mart…than customer confusion”.

I agree. So does a trademark expert and law professor Wendy Seltzer who Al quotes as saying, “No one is allowed to monopolize necessary colors.”  She contributes to an informative intellectual properties blog branders should find valuable at

 www.chillingeffects.org

Although the article didn’t define “necessary colors”, I suspect that means primary, secondary and tertiary colors; the web-safe colors of the internet and the pms colors of the Pantone palettes.

I’ll just bet the packaging issue between TerraCycle and Scotts will never come to trial. At least I hope not.

Martin Jelsema
303-242-5975

2 thoughts on “Can a company “own” green?

  1. Martin,

    I’ve noticed you’ve been using letters of the alphabet to form words on your blog. I have used these “alphabetic letter forms” for at least 4 decades and you are infringing on a crucial aspect of my branding. Expect to hear from Mr. Green, my lawyer, in the very near future (once he finishes harvesting some worm droppings, that is)…

  2. Hello Martin,

    I am the Director of Trade Marketing for Terracycle. Thank you for your interest and support. For more information, and our humorous take on this lawsuit, visit:

    http://www.suedbyscotts.com

    Thanks again for your support!

    Fred E. Young III
    Director of Trade Marketing
    TerraCycle, Inc.
    404.216.0369 (cell)
    609.393.4252 (HQ)
    fred@terracycle.net

    TerraCycle manufactures affordable, potent, organic products that are not only made from waste, but are also packaged entirely in waste!
    http://www.terracycle.net

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