Milwaukee Sewerage District Threatens Menards Over Fertilizer Sales

from the oh-shit dept

We have certainly seen some shitty trademark disputes in the past, but this one that centers around lawn fertilizer may take the proverbial cake. Apparently, the Milwaukee Metropolitan Sewerage District, supposedly focused on keeping the city’s public water clean and local flooding from occurring, has something of a side hustle going where it also sells fertilizer to citizens, marketed as “Milorganite”. Menards, the well-known home improvement retailer based in Wisconsin, sells its own fertilizer, marketed as e-Corganite. For this reason, in part due to an advertisement Menards put out (more on that in a moment), the Sewerage District has sent letters to Menards threatening to sue for trademark infringement. Worth noting is that Milorganite is actually sold in Menards stores.

The sewerage district has sent a letter to the company asking it to stop using the name e-Corganite for fertilizer it’s been selling in Menards stores. Menard is trying to convince shoppers to purchase e-Corganite instead of the district’s Milorganite fertilizer, according to the letter from Joseph Ganzer, a MMSD senior staff attorney.

The letter includes a photo of a Menard store display showing the two products next to each other.

“As you can see, the name, bag design, and label are virtually identical to MMSD’s Milorganite bag,” Ganzer wrote.

So, about that advertising display, well, here it is.

Now, there is quite a bit to say about that ad display. The names of the product are markedly different. While both use “organite” in the names as a reference to the organic material serving as a fertilizer, “mil” and “e-c” are very, very different. These are not homophones. They’re not calling out the same origins. They are flatly different.

On the question of trade dress, sure, both products feature a logo at the top of the bag and then a house and lawn in the imagery. The imagery is basically the same as every fertilizer product, or at least most of them. Complaining about including a home and lawn on a home fertilizer product is, frankly, silly. As to the logos at the top of the bag, well, those sure do seem significantly different as well. Different shapes on the borders combine with the prominent use of the different brand names to draw a firm distinction between the two products.

As does, you know, the fact that Menards is putting them side by side specifically to distinguish them in the advertising. Nobody is looking at that display and drawing any confusion that the two products are the same, related, or from the same origin. The whole point of the display is to draw a distinction between the two.

Yet, despite all of this, the Sewerage District has put the possibility of a lawsuit on its agenda for an upcoming commission meeting.

“The commission action is simply to ensure we may file suit if negotiations break down without having to rush an item to agenda in late summer, especially with August recess,” Ganzer said.

A lawsuit could seek damages, payment of any profits tied to selling e-Corganite and reimbursement of attorney’s fees.

“However, MMSD has had a long and mutually beneficial relationship with Menards and we hope to continue selling our product in Menards stores,” Ganzer wrote in the letter to the retailer. “My hope is that we can come to a resolution of this matter that will allow Menards to produce and market a competing biosolid fertilizer product, while simultaneously eliminating the risk of consumer confusion with MMSD’s product,” the letter said.

There is no confusion. Menards has taken great pains to distinguish its products from those of the city. The only real question left is why Menards would bother agreeing to sell Milorganite at all any longer, given that the Sewerage District appears to want to bite the hand that feeds it.

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Anonymous Coward (user link) says:

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homeowner Bill says:

Well I have to say, of all the stores that deserve to be sued, Menards is at the top of the list IMHO, just not for this reason. For years they have been running an on-and-off rebate program that purports to offer 11% off all purchases. There are two major problems with it though. First, unlike almost every other retailer that still uses rebates as a promotional gimmick, Menards has no mechanism for applying for a rebate online. You still have to obtain a form, fill it out, include your receipt, put it in an envelope and put affix postage (which means it’s not cost effective to apply for a rebate on a small item), mail it and then wait for it to come back to you in the mail. And oh yeah, it comes in the form of a store credit that can ONLY be used at Menards. As you can imagine, many customers forget, or don’t bother, but even if they do jump through all the hoops there is no guarantee they will get the rebate – in fact a class action lawsuit was filed in 2020 because of this: Menards Class Action Alleges Deceptive Rebate Program.

I don’t think they even begin to understand how much ill will their rebate scheme (scam?) has generated. Personally I will go to Lowes, Home Depot, or even Ace Hardware first, and only go to Menards as a last resort, if I absolutely cannot find what I am looking for in one of those other stores. I’d rather shop at stores that don’t use rebate gimmicks, or if they do (as Ace Hardware occasionally has done), they give you a way to apply online. Menards could make it easier for their customers to apply for rebates, they just don’t want to, and that tells me everything I need to know about them.

That Anonymous Coward (profile) says:

"we hope to continue selling our product in Menards stores"

BWHAHAHAHAAHAHAHAHAHAAHAHHAAHAHAHAHAHA!!

What we have here is the dimmest bulb of an idea hitting the members of the district.
You mean if we threaten them they might opt to not carry our product?
You mean if we cost them money no retailer will want to sell for us?
They should be nicer than that after we’ve called them thieves & threatened an IP lawsuit.
They should just rebrand their product & keep selling ours.

Its a little weird to see a sewerage district selling fertilizer, given the issues run off causes to water ways & increased costs it creates. But then having a lawn is the american dream even in the face of drought… (looking at you Las Vegas).

Trails (profile) says:

Anti competitive?

So the trademark thing is patently ridiculous. The Menards brand communicates "We’re like Milorganite", not "We are Milorganite".

I’m sorta surprised they didn’t take a more anti-competitive slant to their claim. Menards is obviously leveraging its position as a distributor of fertilizers to encourage users to buy their product. I’m not close enough to anti-competition nuances to know if it’s over the line, but it certainly seems closer to it here than the trademark claim of "their lawn fertilizer shows a lawn, just like ours".

Anonymous Coward says:

If you have a trademark that you want to keep, you are legally obligated to defend it, and defending it means suing those who might be infringing on it. You can paint people as greedy and evil all you want, but this is what is necessary for compliance with the law. Governments may be responsible for creating and maintaining law, but they are also required to abide by it. This is just an unfortunate example of what it sometimes means to abide by the law.

Anonymous Coward says:

Re: Re:

No. No you don’t have to file frivolous claims in order to "protect your trademark". Further, trademarks are protected to serve the public, not because it’s some piece of property you own.

Beyond that i would question to what extent a governmental body can correctly have such a trademark.

But thanks for reminding us of this aspect of trademark law every time a stupid-at-the-speed-of-light trademark suit shows up in a post here.

Tanner Andrews (profile) says:

Re: Re:

defending it means suing those who might be infringing on it

For such an argument to work, there needs to be infringement. The names are dissimilar, and the styles in which they are shown are dissimilar, and the promotion is showing them side by side for comparision. Not even a “moron in a hurry” is going to be confused.

Next time, try not to be silly.

Anonymous Coward says:

Re: Re:

Sure. Sorry for not submitting an entire legal dissertation in a comments section, and thank you for the snarky oversimplification to knowingly justify a misinterpretation.

There are several ways to come to an agreement out of court, but those agreements often fail to 1) be effective and 2) publicly demonstrate defense of the trademark. Many suits are settled out of court, which highlights their use as a negotiation tool for coming to an agreement. This is why they are almost always used.

If a phone call or a cease and desist letter would have worked, there wouldn’t be a techdirt article to comment on. This is where any dispute you will ever hear about will go, because it is the only reasonable place for it to go. It’s called "civil" court for historical reasons, but most reasonable people would agree that it is a much better way to resolve disputes than "pistols at dawn."

Anonymous Coward says:

Re: Re: Re:

There are several ways to come to an agreement out of court, but those agreements often fail to 1) be effective and 2) publicly demonstrate defense of the trademark.

Instead of a "legal dissertation", could you perhaps give a reference to case law here? Something where one company put another on notice, and came to an agreement, with respect to its trademark, and the court nevertheless ruled that it didn’t try to defend its trademark?

Pixelation says:

"There are several ways to come to an agreement out of court…"

Thanks for making my point. Suing is not the only way to manage a Trademark dispute, unlike what you said.

"…most reasonable people would agree that it is a much better way to resolve disputes than ‘pistols at dawn’."

I disagree. Pistols at dawn would probably prevent a lot of disputes and the outcome would have at least a 50% chance of ridding the world of a waste of space. 🙂

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