THE IRI SH Mail on Sundaynewspaper has claimed before the Commercial Court there is no evidence of any damage, loss or prejudice resulting from its publication of an alleged "fake" copy of the Sunday Tribunelast month, just days after a receiver was appointed to it.
Michael Howard SC, for the Mail, said yesterday there was no registered trademark for the 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 the public or retailers were confused by the disputed publication on February 6th last into thinking it was the Tribune, counsel argued. It was being alleged his side had no defence to claims of "passing off" but on any view the Maildid have an arguable defence, counsel 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 SC, for Tribune receiver Jim Luby, argued the Mailhad "grabbed" the Tribunemasthead and "masqueraded" as it in an attempt "to kill off" the goodwill of the Tribune as quickly as possible.
People buy newspapers by reference to the front cover, not an examination of what is inside, counsel said. This publication featured a similar masthead to the Tribune in the same colours and there was no reference to the Mail until the reader looked inside.
In this case, inside the "wraparound" cover, there was a letter from the Mail to Tribunereaders saying the Mailintended to carry on the Tribune'stradition of independent journalism but failing to say there was no permission from the Tribuneto that effect, counsel added.
He said the Mail 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 Tribune. The Mailhad shown no prima facie defence to his side's claim of passing off, he submitted.
Ms Justice Mary Finlay Geoghegan yesterday began hearing an application by the Mail 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 6th last. The hearing of the motion is expected to conclude this morning.
Mr Luby was appointed receiver to Tribune Newspapers plc on February 1st last and is claiming damages, including "exemplary damages" over this "direct attack" on the goodwill of the Tribune. The defendant has denied the claims.
Mr Luby has argued the most valuable asset owned by Tribune Newspapers plc is the goodwill in the title. In an affidavit, he said that, after his appointment, he decided to offer the newspaper for sale and not to publish it on February 6th as he was unable to obtain libel insurance cover.
