Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Scotts seeks to enjoin competitor from using allegedly false comparison claims of the companies’ grass seed products, (Apr 8, 2014)
Law Firms Mentioned:Hunton & Williams
Organizations Mentioned:Hunton & Williams, LLP | Pennington Seed, Inc. | The Scotts Company LLC
By Jody Coultas, J.D.
Pennington Seed, Inc. has violated the Lanham Act and Virginia state law by advertising its 1 Step Complete grass seed products using a comparison test previously held to be invalid, according to a complaint filed by The Scotts Company in the federal district court in Richmond, Virginia (The Scotts Company LLC v. Pennington Seed, Inc., April 4, 2014)
In a closely-related case between the parties, the U.S. District Court for the Eastern District of Virginia held that Pennington’s root comparison advertising was based on invalid tests that used outdated and improper directions for Scotts’ EZ Seed® product. Pennington stated that it would not run the advertisement again.
Scotts filed the current suit after it allegedly learned that Pennington’s 2014 advertising campaign included the same tests and images. The advertisements, which appear on displays and in television commercials, show side-by-side comparisons of the rooting performance of 1 Step Complete and “other combination products,” which Scotts argues clearly refers to EZ Seed because the images were pulled directly from the previous campaign that referred specifically to EZ Seed. Pennington’s website explicitly advertises that 1 Step Complete will “help roots grow deeper for stronger hold than Scotts.”
The suit claims that the advertisements were literally false and misrepresented the nature, quality, and characteristics of 1 Step Complete and EZ Seed in violation of the Lanham Act. Scotts claims that these violations were willful and intentional. Scotts also filed Virginia Consumer Protection Act and common law unfair competition law claims against Pennington based on the allegedly false advertising.
Scotts is seeking a permanent injunction that would prohibit Pennington from making false statements about either 1 Step Complete or Scotts’ EZ Seed, as well as compensatory damages and attorney’s fees and costs.
The case is No. 3:14-cv-248.
Attorneys: Stephen P. Demm (Hunton & Williams) for The Scotts Company LLC.
Companies: The Scotts Company LLC; Pennington Seed, Inc.
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