Michael Howard, counsel for the IMOS, told the Commercial Court yesterday there was no registered trademark for the Sunday Tribune and it had not been self-financing for years, relying heavily on subsidies from Independent News & Media before receiver Jim Luby was appointed.
There was no evidence that the public or retailers were confused by the disputed publication on February 6 last into thinking it was the Sunday Tribune, he argued.
It was being alleged his side had no defence to claims of “passing off” but on any view the IMOS did have an arguable defence, Mr Howard submitted.
There was no affidavit from any member of the public, retailer or journalist saying they had been confused by the publication and only “bold assertions” that damage was suffered with no evidence related to the value of the title or the losses sustained, he added.
John Gordon, counsel for Sunday Tribune receiver Jim Luby, argued the IMOS had “grabbed” the Sunday Tribune masthead and “masqueraded” as it in an attempt “to kill off” the goodwill of the Sunday Tribune as quickly as possible.
People buy newspapers by reference to the front cover, not an examination of what is inside, he said. This publication featured a similar masthead to the Tribune in the same colours and there was no reference to the IMOS until the reader looked inside.
In this case, inside the “wraparound” cover, there was a letter from the IMOS to Sunday Tribune readers saying the IMOS intended to carry on the Sunday Tribune’s tradition of independent journalism but failing to say there was no permission from the Tribune to that effect, counsel added.
He said the IMOS had published 26,000 copies of the disputed publication, of which 10,000 were sold, and had also asked retailers to place the publication in the space normally reserved for the Sunday Tribune. IMOS had shown no prima facie defence to his side’s claim of passing off, he said.
Ms Justice Mary Finlay Geoghegan yesterday began hearing an application by the IMOS for an order requiring Mr Luby to provide security for the legal costs of the proceedings against Associated Newspapers (Ireland) Ltd over the alleged “passing off” on February 6 last.
Mr Luby was appointed receiver to Tribune Newspapers plc on February 1 and is claiming damages, including “exemplary damages” over this “direct attack” on the goodwill of the Sunday Tribune. The defendant denied the claims and has argued the proceedings were more appropriate for the Circuit Court.