Battle over the ‘eyes’ is settled p. 21

By: M.L.Stein

THE “EYES” WILL have it for both the San Jose Mercury News and the alternative newspaper, Metro.
A three-year legal wrangle between the two papers ? mostly over the use of an “eye” nameplate ? has been settled with both sides claiming victory.
In 1991, the Metro, a free San Jose tabloid which has since acquired eight other weeklies, filed an antitrust suit against the Knight-Ridder-owned Mercury News, charging it with trademark infringement and attempting to monopolize the local advertising market.
One of the main points of contention was the Mercury News publication of a stand-alone and weekly ROP arts and entertainment tabloid named eye.
The Metro, in business since 1985, claimed eye was an infringement on its long-running column, Public Eye. The alternative publication also charged the daily stole the name of another of its features, Ticket Window, which provides information on entertainment ticket-buying.
Moreover, the Metro said, the Mercury News copied its trade dress with its tabloid format and used newsracks similar to design to those of Metro and sometimes stuck eye into Metro boxes.
No money was paid in the settlement by either side. The Mercury News will keep the name eye on its publication but will clearly identify it as a section of the newspaper “and not appear to be an independent newspaper like Metro,” according to Metro publisher and CEO Dan Pulcrano. The words San Jose Mercury News on the cover of eye will be increased by five-eighths of an inch in each direction.
The Mercury News also will find a new name for its Ticket Window and will stop distributing the eye in 18 outdoor racks on three college campuses.
“We are extremely pleased with the outcome,” said Pulcrano. “This is a big victory for small, independent newspapers. Daily newspapers will think twice about passing themselves off as alternative newspapers.”
“This was never about money,” said Metro publisher David Cohen. “All we wanted was fair competition.”
He accused the Mercury News of “aggressively attacking us and targeting our advertisers with special deals and free overrun circulation.”
Mercury News president and executive editor Bob Ingle termed the Metro’s suit “frivolous and a three-year waste of time and money.”
“Anyone familiar with antitrust suits knows that when no monetary compensation is paid and no substantial business practices are changed, the plaintiff has lost,” he added.
Ingle scoffed at the Metro’s claims, saying, “Every newspaper editor in America knows that Metro did not invent the tabloid formula in 1985.”
The editor said the Mercury News had planned to get rid of the racks anyway as not being effective distribution points and concentrate on other outlets such as stores and restaurants.
Ingle also asserted that both papers got the title Ticket Window from the same source: Bill Graham Productions. “I agreed to change the name because I don’t care about it that much,” he said.
Moreover, he denied that the Mercury News had a practice of placing eye in Metro newsracks.
In one instance, Ingle recalled, a hotel manager told a driver to stick eye in a Metro rack. “Their assertion of a victory is pretty hollow,” Ingle stated. “They didn’t get damages or change the way we do business.”
When the suit was first filed, Ingle said 188 publications nationwide used the term “eye” in their titles.
However, the U.S. 9th Circuit Court of Appeals last year ruled that the name of a newspaper feature has trademark law protection in deciding in favor of Metro. The appeals court remanded the case to a lower court for a ruling on the Metro’s request for an injunction to prevent the Mercury News from using “eye” in its publication.
Mercury News attorney Edward Davis Jr., described Metro’s suit as an “abuse of process because it attempted to use the antitrust laws of the country to intimidate the Mercury News into not competing.”
John Alioto, Metro’s lawyer, commented: Metro consistently beat the San Jose Mercury’s eye publication where it counted: in the marketplace. Metro regrouped its initial losses and turned them into gains.”nE&P

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