Rebecca Tushnet

Scotts Co. v. Procter & Gamble Co., 2026 WL 482655, No.
2:24-cv-4199 (S.D. Ohio Feb. 20, 2026)

Previously, the court rejected Scotts’ request for a
preliminary injunction of the trade dress of P&G’s Spruce brand of weed
killer products, finding that it was not likely to be confused with Scotts’
Miracle-Gro. Scotts also makes Roundup and Ortho, relevant to the false
advertising claims addressed here. The court dismissed one part of the claim
but allowed the rest to survive.

Scotts challenged four different P&G statements (combined
with certain visuals).

Dead weeds in 1 day

First, “Dead Weeds in 1 Day” and its accompanying visuals.  Scotts alleged that this was “literally false”
because Spruce weed killer will not kill the entire weed within one day. Spruce
is a “minimum risk product” as defined by the Environmental Protection Agency,
and “[t]o date, all minimum risk products work by making contact only with the
exposed portions of the plant and none directly affects the roots of the
plant.” Thus, while “[w]ith regular application at certain dosages over time, a
minimum risk product may eventually exhaust the roots’ storage of nutrients by
repeatedly removing its leaves,” it will not kill the entire weed within one
day.

Statement 2 uses the same visuals and has the same alleged
problem: “Spruce works differently by dehydrating the weed down to the roots
for dead weeds in just 1 day.”

visible results in 1 hour

Statement 3 promises “FAST Visible Results Within 1 Hour” or
“visible results in 1 hour,” accompanied by before and after visual depictions.
Scotts alleged that these “after-application images do not accurately portray
typical results” of Spruce weed killer’s effects after only one hour.

Spruce works differently image

Statement 4 is titled “Spruce Works DIFFERENTLY.” It also
says “WEEDS DEHYDRATE TO DEATH,” “1 HR,” and that “Without water, weeds
dehydrate and die fast, showing visible results in 1 hour,” and was allegedly misleading
for the same reasons.

P&G argued that Rule 9(b) should apply because false
advertising “sounds in fraud.” Although this argument routinely works in
consumer protection cases (because courts don’t like them), it fails here, as
it sometimes does in Lanham Act false advertising cases. (Never in regular
trademark cases, as far as I can recall.)

As P&G conceded, “[n]o Circuit has yet ruled on whether
Rule 9(b)’s pleading standard generally applies to Lanham Act false advertising
claims.” P&G’s theory of the law is that “if an element of any claim
‘requires an allegation of duplicity,’ it ‘implicates Rule 9(b)’s purpose’ and,
therefore, Rule 9(b)’s heightened pleading standard applies.” And, because
Scotts alleged intentional deception, the claim sounded in fraud.

But, as the court noted, “Lanham Act false advertising
claims do not have a scienter element, so it is hard to see how they would
require an allegation of duplicity.” The Sixth Circuit has applied the Rule
9(b) pleading requirements to some causes of action missing an intent
requirement on par with the intent required for fraud—for example, to innocent
misrepresentation. “But typically, courts do so when a ‘unified course of
fraudulent content’ forms the basis of those non-fraud claims—especially if
pleaded alongside fraud.” This is designed to prevent evasion of Rule 9(b).

Here, though, Scotts’ false advertising claim was based on
the allegedly false and misleading nature of the statements themselves, not on
the allegation that P&G is “willfully … intending to deceive consumers.” “That
is, if the statements are false, liability could attach even absent intent. So
there is no indication that Scotts’ actual claim is fraud, with the false
advertising claim only pled to circumvent Rule 9(b)’s strictures.”

More generally, “Lanham Act false advertising claims, while
also based on ‘false’ statements, seem different in kind than traditional fraud
claims.” Rule 9(b) is designed to ensure defendants have sufficient notice to
respond. “But allegedly false or misleading advertisements typically run over
an extended period of time, making it ‘unreasonable and contrary to the Sixth
Circuit’s liberal construction of Rule 9(b) to require Plaintiff[s] to identify
the exact day, hour or place of every advertisement’ that caused them harm.” Scotts
clearly identified the statements it challenged, providing P&G all of the
notice needed for it to respond. (It would also be possible to decide that this
satisfied 9(b), as some cases have done.)

In addition, Lanham Act claims differ because Scotts was not
alleging that it itself was defrauded, but that its customers are. “[G]iven
that Scotts itself was not the defrauded entity, some of the who, what, when,
where, and why questions that form the typical grist for Rule 9(b) may turn on
information that Scotts itself does not have—information that instead rests
only with the allegedly defrauded customers.”

Turning to the merits, Scotts plausibly alleged that
statements 2-4 were false or misleading, but not the literal falsity of
statement 1.

Recall that, on Scotts’ theory, Spruce weed killer does not
directly affect the weed’s roots, so it does not (indeed cannot) kill the
entire weed within one day (as the roots are still alive). P&G pointed out
that the visuals do not depict the subterranean portion of the plant, and
argued that “a ‘dead weed’ refers to a plant evidencing visible necrosis as
featured in the accompanying image.” A statement “cannot be literally false if
it reasonably conveys multiple meanings,” and that was the case here. “While
consumers might plausibly take ‘dead weed’ to mean that the entire plant is
dead, and will not grow back, consumers could also plausibly consider a weed
evidencing visible necrosis (i.e., the visible green part is now brown and
dead) to be a ‘dead weed.’”

Scotts did plausibly plead that Statement 1 was misleading. Statement
2 could also cross the line to literal falsity by claiming to dehydrate the
weed “down to the roots for dead weeds in just 1 day.”

This is not ambiguous. The obvious
meaning of this statement is that Spruce works—apparently in contrast to other
weed killers—by dehydrating the whole plant, including the roots. It is not
plausible that reasonable consumers would take the phrase “down to the roots”
to mean just the above-ground portion of the weed. “Down to the [whatever
thing]” conveys finality and the exhaustion of that thing. If coffee is good
“down to the last drop,” one expects that the last drop will be good, as well.
And if an event is planned “down to the last detail,” that means that the last
detail is accounted for, too. True, sometimes phrases using this structure can
mean something like “everything is gone except the thing.” For example, if a
house is burned “down to the ground,” that does not suggest that the ground
itself has burned. But even then, “down to [something]” means that the entirety
of the thing is exhausted. The house burning “down to the ground” means that
everything that can burn has; no part remains. Either way, weeds dehydrated
“down to the roots” conveys that the roots, too, are dehydrated. Accordingly,
there are not multiple reasonable interpretations of Statement 2 and Scotts has
sufficiently alleged that it is literally false and misleading.

Statements 3 & 4 were also both plausibly false and
misleading. “Scotts is alleging that weeds treated with Spruce weed killer will
not have the visible results in one hour that the images depict. Or in other
words, if you spray weeds with Spruce and wait one hour, the weeds do not in
fact look like the pictures. Whether these images are actually inaccurate, and
if the images and statements together are actually misleading consumers, are
issues the Court will address later.”

from Blogger http://tushnet.blogspot.com/2026/02/does-dead-weeds-in-1-day-mean-entire.html

Tresóna Multimedia, LLC v. Pre-Cleared Ltd. D/B/A ClicknClear,
2026 WL 480858, No. 25-cv-6202 (GBD) (S.D.N.Y. Feb. 19, 2026)

Tresóna, a music copyright licensing entity, sued competitor
ClicknClear for NY state and federal false advertising. The court dismissed the
claim.

Since 2009, Tresóna has allegedly been issuing music
licenses, on behalf of music rightsholders, to a “niche market” of “scholastic,
community, and professional organizations.” Its main clients “include vocal
ensembles, marching bands, color guards, show choirs, and other similar
performing arts groups.” Its licenses cover certain musical works and sound
recordings, including for “print, synchronization, dramatic performance, and
remixing.”

ClicknClear entered the U.S. market in or about 2016 and
later attempted to move into the “niche market” that Tresóna operates in –
issuing licenses for musical works and sound recordings to scholastic,
community, and professional organizations. It offers “licenses to various
performance sports in which teams perform alongside recorded music, including
artistic swimming, cheerleading, color guard, dance, dressage, figure skating,
fitness, gymnastics, indoor skydiving, jump rope, and band/vocal ensembles.”

ClicknClear’s website informs consumers that “[t]here is
often misleading information about what rights are required for ensembles to
make an arrangement of music to accompany your routine.” ClicknClear states
that “the rights that are needed to use a song in your performance” include the
right to 1) “[p]ractise alone;” 2) “[s]et choreography to the song(s);” 3)
“make copies of the arrangement for personal (practise) use; and 4) “[p]erform
the routine in public with music: practise and competition.” ClicknClear states
that “ClicknClear offer[s] all of these rights with our standard license.”

ClicknClear further purports to offer “legal services,” on
its website, including “legal advice for owners and users of intellectual
property rights, copyright and related rights.” And it offers a “License
Verification System” (“LVS”) feature on their website that purports to evaluate
and verify third party licenses, including Tresóna’s licenses. Users select the
events at which the user is performing or competing, upload a sound recording
of the sound, and upload proof of licensing documentation. The LVS returns one
of three possible outcomes for the user; “green” for licensed, “yellow” for
unverified, and “red” for unlicensed. The LVS only returns an automatic “green”
result if the license is from ClicknClear, while any license issued by third
parties will return a “yellow” result. ClicknClear has stated that when
consumers receive an “unlicensed” or “unverified” result via the LVS, it causes
them to “panic.”

In a prominent Facebook group for marching band arrangers, an
individual defendant suggested (and then retracted after Tresóna’s C&D)
that ClicknClear is able to offer better licenses at a lower price than Tresóna
because Tresóna does not use a “pre-cleared model.” In a presentation given to
potential consumers, ClicknClear suggested that its licenses are “stronger”
than those offered by Tresóna as they cover “all” of the rights necessary,
while suggesting that “Tresóna does not offer a full license but rather only a
certificate.”

First, the challenge to ClicknClear’s statements about what
rights are necessary: Tresóna argues that the statements were both literally
and impliedly false because these are “illusory” rights that consumers do not
need in all situations. The court found that these were non-actionable opinions
about the law. “As both sides agree, the necessity of these rights involve
unclear and contested areas of copyright law. Indeed, ClicknClear and Tresóna
devote most of their briefing to arguing whether or not each subset of the
necessary rights (to set a choreographed routine, to publicly perform, and to
practice alone) are actually needed by consumers.” Given this dispute,
ClicknClear is “expressing an opinion on an inconclusive question of law” and
“not making representations of verifiable or ‘hard definable facts.’ ”

Even if these weren’t opinions, they were ambiguous:
ClicknClear mentions on its website, quite ambiguously, which rights are
“required for ensembles to make an arrangement of music to accompany your
routine.” “In order for these statements to be literally false, Tresóna would
have to plausibly allege that there is no instance in which these rights are
required.” But whether or not these rights are needed in a given case depends
on the outcome of a “fact-specific and [ ] individualized inquiry” in this
“unsettled area of copyright law.”

That didn’t prevent misleadingness, but for that, Tresóna needed
to “allege that consumers or retailers were misled or confused by the
challenged advertisement and offer facts to support that claim” or allege deliberate,
egregious deception. It didn’t. It alleged that “[c]ustomers have told Tresóna
that they are facing pressure from their federations and governing bodies to
use ClicknClear instead of Tresóna,” and “the pressure is driven at least in
part because of ClicknClear’s false and misleading statements as well as the
LVS.” But it was not enough to “identify[ ] a broad swath of people [that were]
allegedly deceived.” (Now do trademark complaints.) “Tresóna fails to identify
any ‘federations’ or ‘governing bodies’ that pressured consumers, nor does
Tresona allege how this pressure has caused customers to buy ClicknClear’s
licenses as opposed to Tresóna’s. And even if Tresóna did allege that customers
were buying ClicknClear licenses as opposed to Tresóna’s, Tresóna does not
allege how these decisions were because of ClicknClear’s necessary rights
statements as opposed to other reasons for purchasing ClicknClear’s licenses.”
[I dunno, ‘take this license and not that one to protect yourself against expensive
lawsuits’ seems pretty clear in its pressure effect.]

Merely stating that there have been “LAWSUITS for copyright
infringement” was literally true and thus not actionable. It also didn’t relate
to an “inherent quality or characteristic of the product [at issue].”

License verification system: Was it misleading that all
other licenses issued by third parties, including Tresóna’s, will return a
“yellow” result, meaning the license’s legality is “unverified,” or red for
“unlicensed”? No: “The LVS, ultimately, is an inherently subjective rating
system that evaluates the quality of third-party licenses. Indeed, the outcome
of the LVS is dependent on which factors ClicknClear believes to be important
in evaluating a license. ‘A reasonable consumer would view [LVS’s] rating as
just that – the defendant’s evaluation.’”

And even assuming the statements were impliedly false or
misleading, Tresóna similarly failed to allege sufficient indications of
consumer confusion. “The unauthorized practice of law is not a basis for a
Lanham Act claim.”

Anti-Tresóna statements: ClicknClear’s statements about
Tresóna’s “very bad reputation,” its representations that ClicknClear licenses
are “better” or “stronger” than Tresóna’s, and its assertions that ClicknClear
was in a “strong position” to harm Tresóna were nonactionable puffery.

By contrast, ClicknClear’s statements in 2021, 2024, and
2025, that Tresóna does not use a “pre-cleared model,” or that Tresóna does not
offer a full legally compliant license but instead offers a “certificate,” were
statements of facts that could be proven true or false. Still, Tresóna didn’t
offer facts as to how these statements actually misled the public or affected
their purchases, or that the statements were commercial speech: “part of an
organized campaign to penetrate the relevant market.” “The statements alleged
here, one in a Facebook post that has now been deleted, and two upon
information and belief, do not suggest ‘widespread dissemination within the
relevant industry,’ and more aptly resemble ‘isolated disparaging statements’
that ‘do not have redress under the Lanham Act.’”

The court didn’t have to reach the state claims, but it commented
that Tresóna also failed to allege how ClicknClear’s statement constituted harm
to the public interest, as opposed to another business.

from Blogger http://tushnet.blogspot.com/2026/02/c-licensors-claims-about-competitors.html