These Flowers Triggered a $45-Million Lawsuit

A version of these colorful flowers has become mired in lawsuits. By FajarPangestu/Shutterstock

All home gardeners want are pretty plants for their landscapes and patio pots. They don’t care about the genetics or breeding lines that got those plants onto retail nursery shelves.

That’s not the case, however, with the companies that create colorful varieties of annuals and perennials — or the lawyers who represent them. A little petunia-like flower that's at the center of a $45 million lawsuit is a case in point.

The flower is a variety of calibrachoa called Candy Bouquet. Calibrachoas are perhaps better known by their common name of Million Bells. The variety Candy Bouquet produces striking magenta and yellow flowers. A German grower, Westhoff Vertriebsgesellschaft MBH, said it introduced Candy Bouquet at the Home Depot Spring Trials in February 2014, and a representative of the chain said the company wanted to be its exclusive seller, according to a report by Bloomberg.

Westhoff’s claim that it developed Candy Bouquet has led to a literal holy moly moment in the flower world.

Westhoff and Proven Winners North America LLC, a major distributor of plants to the gardening public, are involved in a lawsuit over whether Candy Bouquet and calibrachoa Holy Moly, developed by Proven Winners, are the same plant. The outcome will be no small potatoes for either side. Calibrachoas have been gaining in popularity among consumers. Calibrachoa sales in the United States were $44.6 million in 2014, compared with $263 million for petunias, according to Bloomberg, which cited the most recent figures from the U.S. Department of Agriculture.

Westhoff claims it was on the verge of selling Candy Bouquet to Home Depot Inc., hoping to become the exclusive seller of the variety, when its plans were put on hold and turned into a May 4 lawsuit filed in U.S. District Court for the Western District of Pennsylvania. The suit, Bloomberg points out, reveals both the dark side of the garden supply industry and the growing importance of big retailers to the nursery trade as well as to the flower-buying public. Privately owned small retail nurseries are finding it increasingly difficult to compete against gardening centers at big box stores.

According to the Bloomberg report on the Westhoff-Proven Winners flower fight, outdoor garden sales generated $6.6 billion for the fiscal year ended Jan. 31 for Home Depot — or about 7.4 percent of the 2,200-store company’s revenue. For Lowe’s, lawn and garden sales were $4.8 billion, about 8 percent of revenue last year. Walmart doesn’t break out those sales.

Proven Winners is owned by a network of growers that formed the group 22 years ago. Bloomberg described the group as like a consortium, adding that it's now the leading brand for flowers in the United States.

The Bloomberg report also quoted industry representatives as saying that the plant breeding industry is changing, with consolidation occurring among breeders and distributors. Smaller companies are being squeezed out as a result, Westhoff’s lawyer, Russ Orkin of the Webb Law Firm in Pittsburgh, said. Those changes, are causing tensions to rise among those who bring new flower colors and more disease-resistant plants to store shelves and from there to American homes and gardens, the story quoted industry insiders as saying.

Where will the debate go? Into more courtrooms?

Home gardeners don't really care. At least not as long as they can still find pretty plants at their favorite garden centers. Their fight is with bugs and droughts and such. And, for them, that’s enough of a battle royale.