Glenn v. Advertising Publications, Inc.

• Decision Date: 02 March 1966
• Citation: 251 F. Supp. 889
• Parties: Norman R. GLENN, Plaintiff, v. ADVERTISING PUBLICATIONS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

251 F. Supp. 889

Norman R. GLENN, Plaintiff, v. ADVERTISING PUBLICATIONS, INC., Defendant.

United States District Court S. D. New York.

March 2, 1966.

COPYRIGHT MATERIAL OMITTED

Golenbock and Barell, New York City, for plaintiff. Seymour Kleinman, Leonard W. Wagman, New York City, of counsel.

White & Case, New York City, for defendant. William D. Conwell, John D. Lockton, Jr., New York City, of counsel.

McLEAN, District Judge.

This is an action at law for damages for injurious falsehood. Plaintiff also describes his action as one for unfair competition. There being diversity of citizenship between the parties, jurisdiction rests on 28 U.S.C. § 1332. Plaintiff also asserts that the court has jurisdiction under 15 U.S.C. § 1121 and 28 U.S.C. § 1338 on the theory that his claim is based, not only on the common law, but also on Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)).

In substance, it is a controversy between two trade publications. Plaintiff is the assignee¹ of Sponsor Publications, Inc., which originally began this action in 1960 and which, until it transferred its assets to another corporation in December 1963, had published "Sponsor," a weekly magazine devoted to news of the broadcasting industry, i. e., radio and television. Norman R. Glenn was president of Sponsor Publications, Inc. and published Sponsor in that capacity from 1946 until December 1963. He is now president of Sponsor's purchaser and is still publishing the magazine.

Defendant since 1930 has published "Advertising Age," a weekly newspaper which contains news of the advertising world in general. Because it covers all forms of advertising, it is referred to in the trade as a "horizontal" publication. Sponsor, on the other hand, because it specializes in a particular type of advertising, is called a "vertical" publication. All these trade publications, whether horizontal or vertical, are eager to sell advertising space in their pages. The people who advertise in them, unlike advertisers in other types of periodicals, are not, in the main, manufacturers of products, but rather are people who themselves are trying to sell advertising. Thus, in the jargon of the trade, both "space media," i. e., newspapers and magazines, and "time media," i. e., radio and television stations, advertise themselves in Advertising Age. Sponsor, being a "broadcast book," attracts primarily the advertisements of the time media.

In December 1958 Advertising Age caused a "readership survey" to be made under the auspices of a professional survey and market research organization, Crossley S-D Surveys, Inc. ("Crossley"). Advertising Age distributed copies of Crossley's report of its survey to prospective advertisers, i. e., radio and television networks and stations and their representatives. It also prepared a brochure of its own entitled "All industry study of media/time buying influences," which described the results of the Crossley survey. It distributed copies of this brochure widely among these prospective advertisers. Finally, Advertising Age supplemented the brochure with "an audio-visual presentation," i. e., a film of slides enlivened by sound and incidental comic relief. It was entitled "The Real McCoy." It also set forth the results of the Crossley survey. Advertising Age showed the film to these prospective advertisers. The purpose was to convince the time media and their representatives that Advertising Age enjoyed such a "reading preference" among prospective customers of the time media, i. e., persons desirous of advertising their wares on radio and television, and the advertising agencies who advised them, as to make it advantageous for the media to advertise their facilities in Advertising Age.

Plaintiff claims, in essence, that the Crossley report itself and defendant's brochure and film based thereon, contain false and misleading statements, that defendant knew that they were false, that defendant made them maliciously and with intent to injure Sponsor, and that they in fact did injure Sponsor by diverting to Advertising Age advertising of television and radio stations which Sponsor would otherwise have secured. To appraise this contention requires a summary of the evidence relating to the making of the Crossley survey, to the contents of the documents and film to which it gave rise, and to the influence exerted by the documents and film upon prospective advertisers.

The survey was conceived in 1958 by Gorden D. Lewis, defendant's manager of advertising sales. Earlier in that year, he had been impressed by reading a survey made by Crossley for Business Week reporting on the reading preferences of persons on the prospect list of Parade Magazine. It occurred to him that a similar survey could be made of the reading habits of persons on the prospect lists of radio and television networks and station representatives.² He assumed that the networks and the station representatives, who are the sellers of broadcast time, must consider that the people on their prospect lists, mainly personnel of advertising agencies and advertising departments of corporations, are to some extent involved in purchasing broadcast time. Otherwise, they would not be prospects and would not be on the list. He reasoned that if such a survey demonstrated that Advertising Age was the favorite trade publication among these readers, the survey would afford Advertising Age a powerful argument to induce the networks and stations to advertise in its pages.

In November 1958, Lewis retained Crossley to conduct the survey. Crossley assigned one of its research associates, Franklin B. Leonard, to take charge of the work.

Lewis wrote to several networks and a number of leading station representatives, approximately 38 in all, requesting the use of their prospect lists for this purpose. Thirteen complied with his request. All but one of them sent their lists to Lewis, not to Crossley. There were many duplications of names on the various lists which had to be removed. Lewis entrusted this labor to a company in Chicago called The Letter Shop, which had worked for Advertising Age on previous occasions. The Letter Shop typed the names on cards, sorted them, purported to remove the duplications, and furnished to Crossley the master list thus prepared. Crossley inserted the thirteenth list. The final master list contained 17,350 names.³

Leonard and Lewis jointly prepared a questionnaire to be sent to each person on the list. It was substantially the same as the questionnaire which had been used in the Business Week survey. It asked the following questions:⁴

"1. What business or trade publications of all types do you read regularly?

2. Now please list the one publication you find most useful in your job.

And for Classification Purposes:

Your Title? _____________

Your Dept.? _____________

What are your job responsibilities? ______________

What does your company make or do? ______________"

After the questionnaire was prepared, Lewis sent copies of it to eight other trade publications, including Sponsor, and invited them to participate in the survey. All declined, with the exception of Sales Management which agreed to allow its name to be used and to defray part of the cost. It took no part in the work of the survey. Some of the invitees accompanied their refusal with caustic comments to the effect that the survey was "loaded" in favor of Advertising Age.

On December 2, 1958, Crossley sent out the questionnaires, over the signature of a Crossley vice president, to all 17,350 people on the master list. Some were never delivered because the addressees turned out to be dead or missing. There was also the duplication previously mentioned of some 5.3 per cent. Deducting these "ineffective" questionnaires from the 17,350, Crossley estimated that the effective mailing totaled 16,077.

Crossley received 2,944 replies, which constituted 18.3 per cent of the 16,077 effective questionnaires. Crossley tabulated these responses in a variety of ways. Some of these tabulations involved a distinction between respondents who were employed by the "top 50" advertising agencies and the "top 100 United States advertisers" and respondents who were not fortunate enough to be so employed. The questionnaires were coded by Crossley to make this classification possible. The names of the "top," i. e., the largest, advertising agencies were obtained from a list which had been published by Broadcasting Magazine. The names of the top 100 national advertisers were obtained from a list which had been published by Advertising Age.

Inasmuch as the questionnaire requested information on "business or trade publications," references in the replies to other types of publications, newspapers and general magazines, were eliminated from the tabulations. Furthermore, only the 40 business and trade publications which were most frequently mentioned in the replies to the question "What business or trade publications of all types do you read regularly?" were included in the tabulations.⁵

Crossley tabulated the replies to the "publications read regularly" question according to the type of business of the respondents, first breaking down the total replies between advertising agencies and advertisers and then further breaking down each class between the top 50 agencies and all others, and the top 100 advertisers and all others.

Crossley next classified the "publications read regularly" responses from advertising agency personnel according to the job function of the respondent, i. e., "account executives," "officers, owners, partners and general executives," "marketing and merchandising executives," etc. One of the classifications used for this purpose was described as "media/time buyers." The importance of this category to the issues in this case will subsequently appear.

Crossley made a similar classification of responses to this question from advertiser personnel, classifying them under various headings, i. e., ...