The Irish Mail on Sunday newspaper has claimed there is no evidence of any damage, loss or prejudice resulting from its publication of an alleged "fake" copy of the Sunday Tribune last month, just days after a receiver was appointed to it.
Michael Howard SC, for the Irish Mail on Sunday, told the Commercial Court today 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 the public or retailers were confused by the disputed publication on February 6th last into thinking it was the Sunday Tribune, counsel argued.
It was being alleged his side had no defence to claims of "passing off" but on any view the Mail did 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 Sunday Tribune receiver Jim Luby, argued the Mail 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, counsel said. This publication featured a similar masthead to the Tribune in the same colours and there was no reference to the Irish Mail on Sunday until the reader looked inside.
In this case, inside the "wraparound" cover, there was a letter from the Mail to Sunday Tribune readers saying the Mail 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 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 Sunday Tribune. The Mail had shown no prima facie defence to his side's claim of passing off, he submitted.
Ms Justice Mary Finlay Geoghegan today 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 tomorrow.
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 Sunday Tribune. The defendant has denied the claims and previously argued the proceedings were more appropriate for the Circuit Court.
Mr Luby has argued the most valuable asset owned by Tribune Newspapers plc is the goodwill in the title 'The Sunday Tribune'. 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.
He said editions of the Mail were published on February 6th with a wraparoud with the same title, colouring and layout as the Sunday Tribune and including four discount vouchers offering readers the chance to buy the Irish Mail on Sunday over the next four weeks at half price.
