No Ground Won in Seed Companies' Turf War

     (CN) - Scotts Miracle-Gro Company can describe a competitor's grass seed as just "a bunch of ground up paper" because the claim is not "literally false," a federal judge ruled.
     During the peak season for grass seed, lasting two months in spring, Scotts and Pennington Seed each smeared each other's seed in advertisement campaigns.
     The companies are competitors in the lawn and garden market, selling grass seed and plant food products.
     Pennington advertised that its product contained "twice the seed" as Miracle-Gro, and Scotts described Pennington's seed as "a bunch of ground-up paper."
     Scotts filed a federal complaint against Pennington on March 2 in Richmond, Va. Two weeks later, Pennington sued Scotts in the Northern District of Georgia. A federal judge in the Peach State transferred the case to Virginia in April, and U.S. District Judge John Gibney Jr. heard the parties' competing motions for injunctions in May.
     Noting that he denied the motions on Nov. 9, Gibney explained why on Friday.
     The court slammed Scotts for waiting more than a year after the "twice the seed" advertisements to file suit.
     "Pennington has established a lengthy delay by Scotts, one that could result in a denial of relief, even if Scotts shows that Pennington's promotional materials are false or misleading," Gibney wrote.
     Given that the 2012 grass season ended in May, "by the time the court heard argument on the motions and the matter was fully briefed before the court, the need for urgency had been removed," he added.
     There was likewise no urgency to grant Pennington a preliminary injunction.
     Gibney also found that "Pennington has failed to show that Scotts' claim is literally false."
     "As a threshold matter, it is undisputed that the mulch component in [Pennington's] 1 Step Complete contains paper," the ruling states.
     Scotts' advertising is unlikely to confuse consumers, the judge said.
     "Rather, reasonable consumers could and would readily understand that ground-up paper is significantly different than a combination grass seed product," he wrote.