Protecting an Identity from Worm Poop?

In the June 6th blog about touchpoints, I cited the following quote:

"A distinctive identity is worth nothing unless you can protect it."

I'm going to follow up on this quote with today's blog about the article Legal Lemons, PR Lemonade by Mike Hofman that was published in Inc. Magazine's June 2007 issue.

Basically, the article is about Tom Szaky and TerraCycle's battle with Scotts Miracle-Gro. Those of us that read Inc. regularly know Tom and his company TerraCycle from a previous Inc. feature article. Cool company. They make organic fertilizer from worm poop. Yep. That's right. Worm poop. On top of that, their packaging comes from your old, discarded 20 oz soda bottles. Needless to say, they've positioned themselves as a green company and they've found some real traction - including the shelves of WalMart and HomeDepot.

The problem; however, is that TerraCycle has found a little undesirable traction. They're being sued by Scotts Miracle-Gro, their largest competitor. Scotts is alleging false advertising and trade dress violations. The false advertising allegations stem from TerraCycle's claim that its product "outgrows the leading synthetic fertilizer." The trade dress violations stem from TerraCycle's packaging. Scotts feels the yellow and green bottle that TerraCycle uses infringes on its registered trade dress.

While the merits of Scotts lawsuit seem a little fishy to me, this situation does a great job of illustrating the quote I started this blog with. Scotts has an identity that they've spent countless years and significant resources building. They've also taken the necessary step of protecting that identity. Now they would simply say that they're in the process of protecting that identity.

Tom Szaky definitely calls b.s. on the Scotts lawsuit (I think most of us are inclined to believe that Scotts is really attempting to derail a small but presumably viable competitor.) but another interesting aspect of this situation is that Scotts may actually be helping TerraCycle. In many ways, TerraCycle benefits from this lawsuit. Scotts is giving TerraCycle big time publicity. TerraCycle gets to cast itself in a David vs. Goliath role and also gets to use the issue in its guerrilla marketing efforts. Check out www.suedbyscotts.com. Aditionally, Scotts futher enhances TerraCycle's image of being the rebel in the industry - the anti-Miracle Gro.