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.