Receiver suing over Sunday Tribune mastheadMonday 21 March 2011 20.01
Lawyers for the receiver appointed to the Sunday Tribune have claimed an alleged attempt by a rival newspaper to pass itself off as the Tribune were an effort to kill off the ailing paper as quickly as possible.
At the Commercial Court this afternoon, John Gordon SC for receiver Jim Luby said the actions of the Irish Mail on Sunday were deceptive and grossly misrepresented the situation at the time.
The receiver is suing Associated Newspapers Ireland, which publishes the Irish Mail on Sunday, after the Mail was published on 6 February with a 'wraparound' cover over its front page carrying a Sunday Tribune style logo.
The Sunday Tribune had ceased publication at the time, while a buyer was sought. It has since ceased publication permanently.
Ahead of a full trial of the issue, the Commercial Court today heard an application from Associated Newspapers, who are seeking to have the receiver lodge a security for their costs.
Setting out his case, Mr Gordon accused lawyers for Associated Newspapers of gliding over and not meeting the principle obligation they have to achieve this goal - of putting forward a defence with a good chance of winning at trial.
He said this was a classic case of passing off, where another newspaper had commandeered a rival paper's mast-head, passed it off as its own and sold 10,000 copies as a result.
Mr Gordon said nowhere on the front of the wraparound was there a reference to it being a copy of the Irish Mail on Sunday.
Inside, he said, was the more serious matter of a letter which tried to say that in some way the Mail would continue the work of the Tribune. He said the impression was that the Sunday Tribune had agreed to this, but this could not have been further from the truth.
Mr Gordon said Associated Newspapers had made a decision to target the Sunday Tribune, to seize its readership and goodwill.
Their strategy, he claimed, was to destroy the Tribune's only real asset - its goodwill. He said the masthead used on the wraparound was the same colour as current and former genuine Sunday Tribune mastheads.
When readers went into the shop to look for the Sunday Tribune, that is what they found, Mr Gordon claimed. The actions of Associated Newspapers had served to created 'mass confusion', he said.
But Michael Howard SC for Associated Newspapers denied that his client did not have the 'arguable defence' needed for it to seek to have the plaintiff lodge security for its costs in advance of the trial.
Mr Howard said they had a clear defence that what the Irish Mail on Sunday had engaged in was not 'passing off' as claimed by the Sunday Tribune's receiver.
He said the Sunday Tribune style masthead used on the wraparound placed around copies of the Irish Mail on Sunday was not the same as latest or former genuine mastheads used by the paper.
Mr Howard said that if the reader looked at the back of the wraparound, it was absolutely apparent that this was a copy of the Irish Mail on Sunday.
He said that when the reader opened the wraparound, the first thing they saw was a letter to Sunday Tribune readers, while the next page was the front page of the Irish Mail on Sunday.
Mr Howard told the court that no claim was made by the Irish Mail on Sunday that it was associated with the Sunday Tribune
He said that no member of the public or newspaper vendor complained that they had mistakenly bought a copy of the Irish Mail on Sunday because they had been confused by the wraparound and thought it was the Sunday Tribune.
Mr Howard said references in the other media to the controversy were founded on the Sunday Tribune's complaints about the Mail's actions, not complaints from the public.
He also said that the defendants would argue that there had been no damage to the goodwill of the Sunday Tribune as it was loss making, only survived because it was being funded by Independent News and Media and its circulation was in decline.
Mr Howard also pointed out that the Sunday Tribune had accumulated large losses, all its staff had been made redundant, it had not been published during the receivership process and it was not financially viable, as evidenced by the fact nobody wanted to buy it.
He pointed out that the Sunday Tribune's receiver had not claimed that the Irish Mail on Sunday's actions had lowered the value of the Tribune.
All there was, he said, was a bald assertion by the receiver, Mr Luby, that prejudice had taken place.
He also argued there had been no interference with the economic interests of the receiver, because the Sunday Tribune has not been published since the Irish Mail on Sunday published the wraparound on 6 February.
He also said Associated Newspapers deny that their actions had been maliciously motivated, but instead were part of a marketing campaign. He also pointed out that the Sunday Tribune was not a registered trade mark.
The case continues before Ms Justice Finlay Geoghegan tomorrow.