Ames Publishing Co. v. Walker-Davis Publications, Inc.
| Decision Date | 07 March 1974 |
| Docket Number | Civ. A. No. 73-2420. |
| Citation | 372 F. Supp. 1 |
| Parties | AMES PUBLISHING COMPANY et al. v. WALKER-DAVIS PUBLICATIONS, INC., et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
Harold E. Kohn, Philadelphia, Pa., for plaintiffs.
John T. Clary, Philadelphia, Pa., for defendants.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Following a hearing held on plaintiff's motion for a preliminary injunction and defendant's motion to hold plaintiff in contempt and for a preliminary injunction pertaining to the Court's order of November 23, 1973, we enter the following:
Findings of Fact
1. Flexrock Company is a partnership which manufactures building maintenance materials, roof coatings, mechanical packing and industrial plastics and engages in publishing of controlled circulation magazines and related activities.
2. Plaintiff, Ames Publishing Company (Ames) is a division of Flexrock Company, a partnership, wherein plaintiffs, Benjamin J. Wasserbly, Florence E. Milner, Leonard M. Wasserbly, Richard Milner and C. George Milner, Esquire, are the partners. Leonard Wasserbly is the partner in Flexrock who is in charge of the Ames operations.
3. Defendant, Walker-Davis Publications, Inc. (Walker-Davis) is a Pennsylvania corporation formed in April of 1973, and the individual defendants, Michael J. Gillespie (Gillespie), William R. Jennings (Jennings), Edwin Farley (Farley), Francis McGill (McGill), Robert Regan (Regan), John O'Kane (O'Kane), together with one other, not named as a defendant, are the shareholders of Walker-Davis.
4. The magazines published by the parties are distributed by means of "controlled circulation". "Controlled circulation" is the means by which magazines are directed to certain sections of the business or industrial communities for no charge. The advertiser can measure the effectiveness of its advertising by either direct response in the case of mailing of post card decks or books to the advertiser, or by the return of post cards directly to the publisher in which case the publisher then informs the advertiser of the extent of readers' interest.
5. "IMPO". IMPO stands for Industrial Maintenance and Plant Operation which is a controlled circulation magazine published for many years by Ames. "SPN" stands for Safety Product News, which is another publication of Ames directed to the plant safety field and started by Ames in 1967. "IDN" is Industrial Distributor News, another magazine publication of Ames which was started by Ames in 1959.
6. "PED" stands for Plant Engineers Digest and Product Report, the publication of Walker-Davis, which is the subject of this litigation. The charter issue of this magazine was mailed in October of 1973, and the first issue will be mailed in February, 1974.
7. Standard Rate and Data Service" (SRDS) is a publication listing other publications broken down by specific categories, together with advertising for those publications. The magazines which are the subject of this litigation, together with their competitors, are listed in Section 113(b) covering plant engineering and plant operations.
8. PED now competes with IMPO and appears in SRDS Classification 113B, devoted to maintenance, repair and operations magazines concerned with plant engineers and maintenance.
9. IMPO and PED, a new magazine competitive with IMPO and published by defendants, are in a market where circulation is particularly important.
10. Circulation is the primary factor upon which an advertising manager of a company or a media purchaser in an advertising agency judges a controlled circulation magazine and places advertising in it. Other important factors are editorial environment, content and cost.
11. Other than PED, all of the magazines considered to be competitors of IMPO are audited by the Business Publications Audit of Circulation, Inc. (BPA).
12. "Business Publications Audit of Circulation" (BPA) is an independent audit bureau which audits the circulation lists of trade publications to make sure that their breakdown circulation is in conformance with their promotional material. BPA takes a sample from a circulation list, projects the sample over the entire list and determines list accuracy. It then issues a BPA statement which is used in the selling of advertising in controlled circulation publications.
13. "Association of Industrial Advertisers" (AIA) is an association of industrial advertisers. As part of the association's functions, AIA furnishes forms to publishers who then send them out and return them to AIA, after which if AIA finds they are properly filled out, AIA returns them to the publisher who makes reprints of them and uses them to sell advertising.
14. A media buyer will refer to a publisher's promotional material first to ascertain the kind of market to which the publication is directed. The media buyer will then rely upon the confirmed sources for circulation information, such as a BPA audit.
15. If a magazine has both a BPA statement and an Association of Industrial Advertising (AIA) statement, the advertiser will generally rely upon the BPA statement.
16. The BPA statement, the Standard Rate and Data (SRDS) listing and the publisher's own information are all relied upon to a greater extent than is the AIA statement for circulation information.
17. A great deal of detail, effort and expense is required to qualify a list to BPA standards.
18. "Verification". Verification applies to a name contained on a circulation list which is checked against another source, such as a reader response card, business directories, association rosters and other trade lists. When used in conjunction with BPA audits, however, it would additionally mean that the circulation list is so coded for computer purposes that the source of the name is contained on the circulation list.
19. "Qualified". Qualified, for purposes of this opinion, means that a given name meets the requirements set forth by the publisher for receiving the magazine.
20. "List Qualified by Function" means that a name on the list shows the function of the person whose name appears on the list.
21. The "highest form" of verification —the one considered most valuable and most saleable—is direct response from the recipient to the publisher.
22. Cost elements in qualification and verification include computer service, salaries of the circulation department personnel, purchase of new lists, postage and printing involved in mailing of verification forms, analysis of reader response cards and duplication checking.
23. All publishers in the field use Standard Industrial Classification (SIC) numbers to describe their circulation.
24. "SIC". These initials stand for Standard Industrial Classification which is a means by which the United States Department of Commerce classifies various industrial companies. The first two digit numbers indicate the field in general and there is a further refinement made by adding two additional digits to the first two digits. The magazines involved in this litigation; namely, IMPO and PED, are directed primarily to SIC classifications 19 through 39.
25. Getting a functional breakdown is difficult and expensive because of the repetition of questionnaires necessary to gather the required information.
26. The normal way for a new magazine to describe its circulation is to state in promotional material the circulation which it will have in its initial edition and make only such claims for that circulation as the publisher is sure will be true for that first edition.
27. The normal and accepted way of dealing with qualification and verification of a new and as yet unaudited magazine is to state that: "Circulation will be audited within the minimum time allowed by BPA rules and regulations" or words to that effect.
28. Ames started out by publishing a magazine for the customers of Flexrock. It later branched out in its publication of IMPO, to a controlled circulation list, and still later, added IDN, SPN and purportedly published one issue of IMPO Buyer's Guide, which was, in fact, not mailed out.
29. Ames Publishing Company presently publishes three magazines: Industrial Distributor News (IDN); Safety Product News (SPN); and Industrial Maintenance and Plant Operation (IMPO).
30. Industrial Maintenance and Plant Operation (IMPO), Ames' principal publication, is an "MRO" book (Maintenance, Repair and Operation). These books are read by plant engineers who are primarily in charge of maintenance and repair of the equipment in their plants. It is a "horizontally" targeted book, reaching a broad cross-section of industry.
31. The circulation firgures in the IMPO SRDS listings have been supported by forwarding its BPA statements.
32. The total cost involved in maintaining, verifying and qualifying Ames circulation lists is approximately $300,000 per year.
33. The Ames circulation lists are confidential.
34. Defendant Jennings was Ames' research manager prior to May 1, 1973.
35. For eight years prior to May 1, 1973, defendant Farley was director of circulation at Ames. Defendant Farley presently handles the circulation and reader service work for Walker-Davis.
36. Defendants Farley and Jennings reported to defendant Gillespie at Ames prior to May 1, 1973.
37. Defendant Gillespie was employed by Ames for 15 years. The last position held was entitled Marketing Director, but his duties primarily were in the sales function and he had charge of the sales representatives for Ames and received an override commission from some of these sales representatives.
38. For a period of time in 1972 and 1973, discussions were had between Gillespie and Wasserbly concerning the possibility of Gillespie receiving an equity interest in Ames. Further discussions were also held concerning Gillespie, Jennings, and...
To continue reading
Request your trial
-
John Wright, Inc. v. Casper Corp.
...F.2d 405 (6th Cir. 1963). For purposes of injunctive relief, only a likelihood of confusion or a tendency to deceive need be shown. Ames Publishing Co., supra.19 False representations need not be literally false; it is enough that they tend to convey a false impression. Id. The defendant's ......
-
Johanna Farms, Inc. v. Citrus Bowl, Inc.
...unclean hands to obtain injunctive relief would run afoul of the legislative goals of section 43(a). Ames Publishing Co. v. Walker-Davis Publications, Inc., 372 F.Supp. 1, 13 (E.D.Pa. 1974). Turning to the substance of the claim asserted herein, preliminarily it is to be noted that the mere......
-
Rare Earth, Inc. v. Hoorelbeke
...Broadcasting Cos., Inc., 376 F.Supp. at 747 (S.D. N.Y.), aff'd, 497 F.2d 1343 (2 Cir. 1974); Ames Publishing Co. v. Walker-Davis Publications, Inc., 372 F.Supp. 1, 11 (E.D.Pa. 1974); Natcontainer Corp. v. Continental Can Co., 362 F.Supp. 1094, 1100 (S.D.N.Y. 1973); Mortellito v. Nina of Cal......
-
Fotomat Corp. v. Photo Drive-Thru, Inc.
...See B. H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254, 1259, 1262 (5th Cir. 1971); Ames Publishing Co. v. Walker-Davis Publications, Inc., 372 F.Supp. 1, 11 (E.D.Pa.1974); Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 376 F.Supp. 1136, 1143 (S.D.Fla.1974). In the ins......
-
Private Remedies for False or Misleading Advertising: Lanham Act Section 43(a)
...5 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS & UNFAIR COMPETITION § 31:44 (4th ed. 1999)); Ames Publ’g Co. v. Walker-Davis Publ’ns, 372 F. Supp. 1, 13-15 (E.D. Pa. 1974). 439. See Clinton E. Worden & Co. v. Cal. Fig Syrup Co., 187 U.S. 516, 535 (1903) (“[T]he trade-mark for which he seeks p......
-
False Influencing
...the Lanham Act and its legislative history reveal its goal of consumer protection); Ames Publ’g Co. v. Walker-Davis Publ’ns, Inc., 372 F. Supp. 1, 13–14 (E.D. Pa. 1974) (“[A]n underlying purpose of Section 43(a) appears to be protection of the consuming public from false representations and......
-
Federal Law of Unfair Competition
...at 922 (citing Stiffel Co. v. Westwood Lighting Group, 658 F. Supp. 1103, 1110 (D. N.J. 1987); Ames Pub. Co. v. Walker-Davis Pubs., Inc., 372 F. Supp. 1, 12 (E.D. Pa. 1974)), “‘[c]ontent can often be important in discerning the message conveyed.’” Id . (quoting Plough , 532 F. Supp. at 717)......
-
Federal Law of Unfair Competition
...F.2d at 922 (citing Stiffel Co. v. Westwood Lighting Group, 658 F. Supp. 1103, 1110 (D. N.J. 1987); Ames Publ’g v. Walker-Davis Publ’ns, 372 F. Supp. 1, 12 (E.D. Pa. 1974)), “‘content can often be important in discerning the message conveyed.’” Id. (quoting Plough, 532 F. Supp. at 717). 97.......