In the feelgood/celebrity stories magazine sector Hello! and OK! have for some time been locked in a pitched battle for market share.
Topic: Comparative Advertising
Who: Hello! and OK! Magazines
When: November 1999
Where: UK, Chancery Division of the High Court
In the feelgood/celebrity stories magazine sector Hello! and OK! have for some time been locked in a pitched battle for market share. The tension came to a crisis point in September 1998, when OK! sent a mailing to advertisers and trade papers with a graph showing each magazine’s sales performance in the four months to 5 September 1998. Hello! Claimed the figures were inaccurate, underestimating Hello! weekly sales figures by 40,000 and sued for malicious falsehood and infringement of the Hello! registered trade mark.
On the eve of the trial in November 1999, a settlement was reached, whereby OK! agreed to pay Hello! £10,000 damages (Hello! have said they will pay this to the NSPCC)and £75000 immediately towards Hello!’s legal costs, plus more towards costs once these had been assessed by the Court. OK! also undertook not to publish OK! estimates of Hello!’s sales in the future.
Why this matters:
This is not the first case in which competing journal publishers have locked horns in proceedings over comparative circulation claims. Clearly much is at stake in these internecine battles, thus making it worth a publisher’s while to enter the lottery of making trade mark infringement and malicious falsehood claims stick in a comparative advertising context. The settlement of the case means the merit of Hello!’s allegations will never be tested, but to succeed in their trade mark infringement claim Hello! would have had to show that OK!’s figures were significantly misleading. To get a finding of malicious falsehood Hello! would have had to go one step further by satisfying the Court that OK! were malicious, or at the very least reckless as to the truth or falsity of what they were claiming when they quoted the allegedly false circulation figures, by no means an easy thing to prove.
Would the outcome have been any different if the claims had been made after the introduction next Spring of the new Comparative Advertising Regulations? Now that would be telling!, but see our article on the topic in the analysis section.