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Judge refuses to halt grass seed ad battle


Scotts, Pennington accuse other of false advertising


By MATEUSZ PERKOWSKI


Capital Press


Two rival grass seed companies will not be prohibited from hurling insults at each other's products in advertisements.


Scotts and Pennington are suing each other over allegations of false advertising related to grass seed and products intended to repair bare patches in lawns.


Each company wanted to stop its competitor from making disparaging statements in television, radio, online and in-store ads, but their claims have failed to persuade a federal judge.


U.S. District Judge John Gibney has declined to issue preliminary injunctions blocking the advertisements, ruling that the two companies' arguments have fallen short at this point in the litigation.


The litigation was initiated earlier this year by Scotts, which accused Pennington of false advertising for claiming that its products had "twice the seed" as those sold by Scotts.


For example, one television ad said "that all patch products are not created equal," as Pennington's 1 Step Complete contains "twice as much seed compared to their EZ Seed."


Pennington's retail packages and displays also claimed that unlike Scotts' Turf Builder coated seeds, its Smart Seed grass seed bags contained "no filler."


Scotts argued that the statements were misleading because consumers were likely to think that Pennington products had twice the number of seeds, whereas Pennington was actually referring to the weight of the seed.


The judge said this was a "close question," but that either party could prevail on the merits at full trial.


"Given the standoff, this factor does not tip in Scotts' favor," Gibney said.


Scotts failed to show that it had suffered irreparable harm from the statement and that "each party's hands appear slightly soiled, which weighs against injunctive relief," he said.


Gibney also said Pennington's statements aren't likely to "substantially cause consumer confusion."


Pennington responded to Scott's lawsuit with its own legal complaint, which sought to halt a "comprehensive national smear campaign" that used a variety of media to equate its 1 Step Complete product with "a bunch of ground-up paper."


Advertisements by Scotts claimed that mulch in its EZ Seed retained moisture longer but touted an outdated and unreliable study to show that the product was more effective, according to Pennington.


The judge refused to enjoin the ads, saying it's unlikely that a reasonable consumer would think they meant Pennington's product consisted of nothing but ground-up paper.


Pennington also did not demonstrate that Scotts' test was too unreliable to substantiate its advertising claim, the judge said.



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