Miracle-Gro maker asks Sixth Circuit to cut off Procter and Gamble weed killers at the root

CINCINNATI (CN) — Deceptively similar color schemes and packaging on Procter & Gamble’s Spruce weed killer products are likely to confuse consumers who want to buy Miracle-Gro, the Scotts Company argued Wednesday at the Sixth Circuit.

Known primarily for marketing Roundup weed killer — which has left producer Bayer proposing a settlement over tens of thousands of legal challenges to its active ingrediFent, the possible carcinogen glyphosate — Scotts filed a trademark lawsuit in 2024 to protect its Miracle-Gro line of plant food, typically sold across the country in distinctive green and yellow boxes.

The Ohio-based chemical company takes issue with corporate titan Procter & Gamble, or P&G, for its launch of a line of competing weed killers and lawn care products, Spruce.

Based in Cincinnati, P&G market the line of products as both a safe and effective herbicide, and also uses green and yellow packaging.

Expert witnesses for each company completed depositions, conducted consumer surveys and presented competing evidence during a two-day hearing after Scotts filed its eventually unsuccessful motion for a preliminary injunction.

U.S. District Judge Douglas Cole, a Donald Trump appointee, found the company was unlikely to succeed on the merits of any of its trademark and unfair competition claims in his June 2025 opinion.

While the billions of dollars in Miracle-Gro sales over the past several decades gave the products’ “trade dress” distinctiveness under trademark law, Cole determined Scotts could not prove consumers were likely to be confused by P&G’s products.

He emphasized several other companies sell lawn care products with similar green and yellow packaging, while also pointing out Miracle-Gro and Spruce are not directly competing products.

Attorney John Gabrielides of the Chicago-based Barnes and Thornburg LLP argued Wednesday on behalf of Scotts.

He told the court Cole conducted his analysis under the wrong standard and failed to view the claims through the lens of an ordinary consumer.

“If a consumer goes into Home Depot to spend $20 or $30 on a lawn and garden product and sees the Spruce packaging, singly and separately, would they think there is a connection with Miracle-Gro?” Gabrielides asked the panel of judges.

The attorney highlighted the Lanham Act’s focus on consumer perception and reminded the court the products cannot be parsed through the eyes of judges or attorneys.

U.S. Circuit Judge Karen Nelson Moore, an appointee of Bill Clinton, pointed out the distinctive feature of Spruce products.

“But you can see the clear part at the bottom of the Spruce bottle, with liquid inside,” she said.

Scotts emphasizes a court is required to consider the “overall impression” of a product, not specific features, but Senior U.S. Circuit Judge Danny Boggs took issue with Gabrielides’ answer.

“Your own description of your trade dress has all these specific elements,” the Ronald Reagan appointee said. “Lawns have green stuff and yellow stuff.”

Scotts’ attorney differentiated between his client’s product and Spruce when he answered.

“Spruce is a weed killer. It doesn’t grow things, it kills things,” he said.

Attorney Lauren Kuley of the Cincinnati-based firm Squire Patton Boggs LLP argued on behalf of P&G and defended Cole’s analysis of the lawsuit.

“The district court did everything it was supposed to do, and everything Scotts asked it to do and more,” she told the panel. “Scotts invited an element and side-by-side comparison of the products. Spruce has a distinctive, transparent panel and is a darker shade of green.”

“Like a spruce tree,” Boggs quipped.

“Correct, your honor. There is undisputedly no evidence of actual confusion in the real-world marketplace despite these products being viewed by millions of consumers,” Kuley continued.

Procter & Gamble focused on Scotts’ failure to provide evidence of irreparable harm in its bid to have the panel uphold the lower court’s decision.

“We are here on a preliminary injunction decision and the word irreparable is nowhere in their brief, which is a prerequisite for relief. Scotts has given no indication emergency relief is necessary as the case plays out,” Kuley said.

Gabrielides disputed the point in his rebuttal and told the court specific evidence was not necessary.

“Losing control of the carefully curated reputation of Miracle-Gro is irreparable harm in the trademark context,” he said. “The lack of control is what creates the harm.”

Senior U.S. Circuit Judge Alice Batchelder, a George H.W. Bush appointee, rounded out the panel.

No timetable has been set for the court’s decision.

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