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DEC 09 2918

JS 44C/SDNY REV, 5/2010

CIVIL COVER SHEET

Ollelill 4

PLAINTIFFS

DEFENDANTS

The Daily Holdings, Inc.

IMG Worldwide, Inc.

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER Debevoise & Plimpton LLP, 919 Third Avenue, NY, NY (212) 909-6000

ATTORNEYS (IF KNOWN)

McCarter & English LLP, 245 Park Avenue, NY, NY (212) 609-6921

CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE) (DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Declaratory relief as to trademark rights (15 U.S.C, §§ 1114 & 1125(a», per 28 U.S.C. §§ 2201 & 2202, Fed. R. Civ. P. 57

Has this or a similar case been previously filed in SDNY at any time? No? 0 Yes? 0 Judge Previously ASSigned

/

If yes, was this case Vol.O Invol. 0 Dismissed, No 0 Yes 0 If yes, give date

& Case No.

(PLACE AN x] IN ONE BOX ONL Y)

NATURE OF SUIT

ACTIONS UNDER STATUTES

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

PERSONAL INJURY

PERSONAL INJURY [ J 610

[ ]620 (]362 PERSONAL INJURY -

MED MALPRACTICE [] 625

[ ] 365 PERSONAL INJURY PRODUCT LIABILITY

[ J 368 ASBESTOS PERSONAL

INJURY PRODUCT [ J 630

lIAB IliTY [ ] 640 [ J 650

PERSONAL PROPERTY [ ] 660

AGRICULTURE OTHER FOOD & DRUG

DRUG RELATED SEIZURE OF PROPERTY

21 USC 881 LIQUOR LAWS RR & TRUCK AIRLINE RE OCCUPATI AL SAFETY/H AL TH OTHER

[ ]422 APPEAL

28 USC 158

[ J 423 WITHDRAWAL 28 USC 157

CONTRACT

[ J 110 INSURANCE [ ]120 MARINE

[ J 130 MILLER ACT [ ]140 NEGOTIABLE

INSTRUMENT

[ J 150 RECOVERY OF OVERPAYMENT & ENFORCEMENT OF JUDGMENT

[ 1151 MEDICARE ACT

[ ]152 RECOVERY OF DEFAULTED STUDENT LOANS (EXCL VETERANS)

[ J 153 RECOVERY OF OVERPAYMENT OF VETERAN'S BENEFITS

[ J 160 STOCKHOLDERS SUITS [ J 190 OTHER CONTRACT

[ J 195 CONTRACT PRODUCT LIABILITY

[ 1196 FRANCHISE

[ 1310 AIRPLANE

[ ]315 AIRPLANE PRODUCT LIABILITY

[ J 320 ASSAULT, LIBEL & SLANDER

[ J 330 FEDERAL EMPLOYERS' LIABILITY

[ 1340 MARINE

[ ]345 MARINE PRODUCT LIABILITY

[ ] 350 MOTOR VEHICLE

[ 1 355 MOTOR VEHICLE PRODUCT LIABILITY [ ]360 OTHER PERSONAL INJURY

FAIR LABOR STANDARDS ACT LABOR/MGMT RELATIONS LABOR/MGMT

REPORTING & DISCLOSURE ACT RAILWAY LABOR ACT [ 1870 TAXES (U.S, Plaintiff or

OTHER LABOR Defendant)

LITIGATION [ J 871 IRS-THIRD PARTY

EMPL RET INC 26 USC 7609

SECURITY ACT

PROPERTY RIGHTS

[ J 370 OTHER FRAUD [ ] 690

[]371 TRUTH IN LENDING

[]380 OTHER PERSONAL

PROPERTY DAMAGE LABOR [ ] 385 PROPERTY DAMAGE

PRODUCT LIABILITY I] 710

HIA (1395ff)

[ 1862 BLACK LUNG (923)

[ 1 863 DIWC/DIWW (405(g)) [ 1 864 SSID TITLE XVI

[ 1 865 RSI (405(9))

[ J 720 [ J 730

FEDERAL TAX SUITS

ACTIONS UNDER STATUTES

[ 1740 [ 1790

CIVIL RIGHTS

PRISONER PETITIONS [ J 791

REAL PROPERTY

[ ]210 LAND CONDEMNATION [ 1220 FORECLOSURE

[ 1230 RENT LEASE &

EJECTMENT

[ 1240 TORTS TO LAND [ ]245 TORT PRODUCT LIABILITY

[ J 290 ALL OTHER

REAL PROPERTY

[ 1441 VOTING [ J 510 MOTIONS TO
[ ]442 EMPLOYMENT VACATE SENTENCE IMMIGRATION
[ ]443 HOUSINGI 20 USC 2255
ACCOMMODATIONS [ ]530 HABEAS CORPUS [ ]462 NATURALIZATION
[ ]444 WELFARE [ ]535 DEATH PENALTY APPLICATION
[ J 445 AMERICANS WITH [ ]540 MANDAMUS & OTHER [ J 463 HABEAS CORPUS-
DISABILITIES - [ ]550 CIVIL RIGHTS ALIEN DETAINEE
EMPLOYMENT [ ]555 PRISON CONDITION [ J 465 OTHER IMMIGRATION
[ ]446 AMERICANS WITH ACTIONS
DISABILITIES -OTHER
[ J 440 OTHER CIVIL RIGHTS OTHER STATUTES

[ 1400 STATE

REAPPORTIONMENT [ J 410 ANTITRUST

[ ]430 BANKS & BANKING [ 1450 COMMERCE

[ ]460 DEPORTATION

[ J 470 RACKETEER INFLUENCED & CORRUPT ORGANIZATION ACT (RICO)

[ ] 480 CONSUMER CREDIT

[ J 490 CABLE/SATELLITE TV [ ]810 SELECTIVE SERVICE [ ]850 SECURITIESI

COMMODITIESI EXCHANGE

[ 1875 CUSTOMER CHALLENGE

12 USC 3410

[ 1890 OTHER STATUTORY ACTIONS

[ ] 891 AGRICULTURAL ACTS [ ] 892 ECONOMIC STABILIZATION ACT

[ ]893 ENVIRONMENTAL MATTERS

[ ] 894 ENERGY ALLOCATION ACT

[ ]895 FREEDOM OF INFORMATION ACT

[ ] 900 APPEAL OF FEE DETERMINATION UNDER EQUAL ACCESS TO JUSTICE

[ ] 950 CONSTITUTIONALITY OF STATE STATUTES

Check if demanded in complaint:

qQj338

D CHECK IF THIS IS A CLASS ACTION UNDER F,RC,P, 23

DO YOU CLAIM THIS CA~E IS RELATED TO A CIVIL CASE NOW PENDING IN S,D.N,Y.? IF SO, STATE: I'

OTHER JUDGE DOCKET NUMBER _

DEMAND $. _

Check YES only if demanded in complaint JURY DEMAND: 0 YES 0 NO

NOTE: Please submit at the time of filing an explanation of why cases are deemed related,

(F='LACE AN x IN ONE BOX ONL Y)

i@') Original 0 2a. Removed from

~\(::tproceeding State Court

D 2b.Removed from

ORIGIN

Remanded from Appellale Court

o 4 Reinslaled or Reopened

o 5 Transferred from (Specify District)

06

Multidistrict Litigation

o 7 Appeal to District Judge from Magistrate Judge Judgment

! \

State Court AND

at least one party is pro se .

(PLACE AN X IN ONE BOX ONL Y)

o 1 U.S. PLAINTIFF 02 U.S. DEFENDA

BASIS OF JURISDICTION

03 F DERAL QUESTION 04 DIVERSITY (U S. NOT A PARTY)

IF DIVERSITY, INDICA TE CITIZENSHIP BELOW. (28 USC 1322, 1441)

CIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiff and one box for Defendant)

CITIZEN OF THIS STATE

PTF DEF

[]1 []1

CITIZEN OR SUBJECT OF A FOREIGN COUNTRY

PTF DEF [ ]3 [ ]3

PTF DEF

INCORPORATED and PRINCIPAL PLACE []5 []5

OF BUSINESS IN ANOTHER STATE

CITIZEN OF ANOTHER STATE []2 []2

INCORPORATED £!: PRINCIPAL PLACE []4 [ ]4

OF BUSINESS IN THIS STATE

FOREIGN NATION

[]6 []6

PLAINTIFF(S) ADDRESS(ES) AI\JD COUNTY(IES)

The Daily Holdings, Inc.

1211 Avenue of the Americas New York, New York 10036

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

IMG Worldwide, Inc. 767 Fifth Avenue

New York, New York 10153

DEFENDANT(S) ADDRESS UNKNOWN

REPRESENTATION IS HEREBY MADE; THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN THE RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Check one: THIS ACTION SHOULD BE ASSIGNED TO: (DO NOT check either box if this a PRISONER PETITION.)

D WHITE PLAINS

DATE 12/9/201 0

RECEIPT #

SI~AT~~ORD

ADMITTED TO ICE IN THIS DISTRICT

[ ] NO 08 1994

~] YES (DATE ADMITTED Mo. Yr. __ -1

Attorney Bar Code # JF4963

Magistrate Judge is to be designated .B~~~urt.

Magistrate Judge GO R

is so Designated.

Ruby J. Krajick, Clerk of Court by

Deputy Clerk, DATED

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

ORIGINAL 10 uv 920 4

David H. Bernstein Jeremy Feigelson

DEBEVOISE & PLIMPTON LL~ 919 Third Avenue

New York, New York 10022 (212) 909-6000

Attorneys for Plaintiff The Daily Holdings, Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------------------x

THE DAILY HOLDINGS, INC.,

10Civ.( )( )

Plaintiff,

COMPLAINT

-against-

IMG WORLDWIDE, INC.,

Defendant.

------------------------------------------------------------------------x

-

Plaintiff The Daily Holdings, Inc. ("TDH"), by its attorneys Debevoise & ~

Plimpton LLP, for its Complaint against Defendant IMG Worldwide, Inc. ("IMG"),

I" )

alleges as follows:

Nature Of The Action

1. This case is brought to confirm the simple proposition that nobody can

own the words "The Daily" in the name of a media outlet. TDH will soon launch a

pathbreaking new general-interest publication for tablet devices, called The Daily and

identified by this distinctive stylized logo:

23331138v2

.. ,.. ,

THE

DAILY

The Daily will be the first major tablet-only media outlet. It will deliver broad-gauged,

custom-crafted coverage of news, the arts, lifestyle, sports and opinion, all in a unique

format that maximizes the special qualities of tablet devices.

2. IMG owns a fashion industry niche publication called The Daily Front

Row which it contends is nicknamed "The Daily." Remarkably, IMG asserts that it owns

common-law trademark rights in the words "The Daily" and that TDH's The Daily will

infringe those purported rights. IMG also asserts that TDH's The Daily will infringe

IMG's registered trademark in the name The Daily Front Row.

3. TDH asks the Court to set the words "The Daily" free by declaring that

IMG's threatened claims are meritless. "The Daily" is a generic phrase for any media

outlet that is updated on a daily basis. IMG cannot own it as the name of a publication,

and neither can anybody else. Using its authority under the Declaratory Judgment Act,

this Court should put an end to IMG's frivolous effort to cast a legal cloud over the

impending launch of The Daily.

2

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,. -

Parties

4. TDH is a corporation organized and existing under the laws of Delaware.

TDH's offices are located in New York City.

5. Upon information and belief, IMG is a corporation organized and existing

under the laws of Ohio with offices in Cleveland, Ohio, New York City and elsewhere. IMG holds itself out as a global sports, entertainment and media business.

Jurisdiction and Venue

6. This Court has original jurisdiction over the subject matter of this action

under 15 U.S.C. § 1121(a) and 28 U.S.C. §§ 1331 and 1338(a). This Court has supplemental jurisdiction over all other claims asserted herein under 28 U.S.C. § 1367(a). There is an actual justiciable controversy between the parties arising under, inter alia, the Trademark Act of1946, 15 U.S.C. §§ 1051 et seq.

7. Declaratory relief is proper under the Declaratory Judgment Act, 28

U.S.C. §§ 2201 and 2202, and Federal Rule of Civil Procedure 57.

8. Personal jurisdiction is proper (~) because Defendant regularly transacts

and conducts business in this District, including the maintenance in New York City of offices and staff for itself and for The Daily Front Row, and (12) pursuant to N.Y.C.P.L.R. § 302(a). Personal jurisdiction also is proper by virtue of IMG's designation of an agent in New York for service of process pursuant to N.Y.C.P.L.R. § 318.

3

23331138v2

.' -

9. Venue is proper in this District under 28 U.S.C. § 1391(b) and (c) because

a substantial part of the events giving rise to these claims arose in this District and because IMG is subject to personal jurisdiction in this District.

A. The Daily

10. The Daily will be the first national daily general-interest publication

created exclusively for tablet devices. It is planned to publicly launch early next year, initially on the iPad, on a paid subscription basis.

11. The Daily will have a fresh, exciting look and feel unmatched by anything

in print, broadcast or on the Web. Every screen will be designed to take full advantage of the unique capabilities of tablet devices. There will be no print edition of The Daily.

12. TDH has spent considerable time, money and creative resources preparing

The Daily for its much anticipated launch to the general public. The Daily has a newsroom already up and running, with its own dedicated editorial staff comprised oftop professional talent. One leading journalism commentator has described the launch of The Daily as "the beginning of the new day ... I think it's an amazing moment." Another commentator has said The Daily "may usher journalism into a new digital age" and describes the launch as potentially "a pivotal moment in journalism history[.]"

13. The Daily's stylized logo will appear prominently on the pages/screens of

the publication.

4

23331138v2

,. «

~ .

B. Use Of "The Daily" In The Media World

14. Given their generic nature, the words "the daily" simply cannot constitute

a trademark for a publication. The words "daily" or "the daily" in the media world are widely understood to denote any outlet that is updated, produced or distributed on a daily basis. The first definition for the noun "daily" on Merriam-Webster's online dictionary is "a newspaper published every weekday." The second definition for the adjective "daily" is "issued every day or every weekday <a daily newspaper>." A Google search for "the daily" yields over 900 million results. These include nationally renowned publications, television shows and websites that are produced or updated on a daily basis such as The Daily Show, The Daily Beast, and Daily Kos, as well as other publications such as the newspaper of Northwestern University, The Daily Northwestern, and an online blog called TheDailyWhat. Numerous media outlets, such as the University of Washington newspaper, not only use "Daily" in their names but use the phrase "The Daily" as their official or unofficial name.

15. Hundreds ifnot thousands of media outlets use "daily" or "the daily" in

their titles. A number of such titles are federally registered as trademarks, substantially all of which disclaim the word "Daily" - as IMG does in its own registrations for The Daily Front Row. According to the Newspaper Association of America, 386 United States newspapers with websites have the word "Daily" in their title.

5

23331138v2

.' ~

,., .

C. IMG And Its Threatened Trademark Claims

16. The Daily Front Row is a print and web publication exclusively devoted to

the fashion industry. On its website, dailyfrontrow.com, IMG proclaims to readers, "This is where fashion happens, 2417, 365 days a year," and promises "[njews, scene, photos, obsessions, parties, launches, and runway, runway, runway!" The print version of The Daily Front Row is printed and distributed every day of New York Fashion Week, and daily during comparable special events held in Miami and elsewhere. It looks like this:

The Daily Front Row also has an iPad application, launched a few months ago, that merely provides replicas of print issues for purchase in electronic form.

17. Although confusion is not relevant in the context of a generic and

unprotectible phrase, no reader could possibly confuse The Daily Front Row with The Daily. The Daily Front Row bears no resemblance to The Daily in content, design, target audience or otherwise. The Daily Front Row focuses only on fashion and lacks stories on

6

23331138v2

most of the topics that will be covered by The Daily, such as national and international breaking news, politics, government, the economy, opinion, lifestyles and sports.

18. Despite the generic and unprotectible nature of the words "the daily" and

IMG's disclaimer of "daily" in its own federal trademark registrations, IMG has begun a campaign of saber-rattling designed to interfere with the planned launch of The Daily.

19. On November 22,2010, Forbes.com posted an interview with Brandusa

Niro, editor in chief of The Daily Front Row. See Exhibit A. In the interview Ms. Niro, undoubtedly schooled by counsel, expressed her purported concern about the launch of The Daily and alleged "significant confusion" between it and The Daily Front Row.

20. In a letter dated November 23,2010, outside counsel for IMG advised

News Corporation, TDH's parent company, that IMG owns two United States trademark registrations for THE DAILY FRONT ROW, that it claims common law trademark rights in THE DAILY, and that both its federal registrations and its purported common-law rights would be infringed by The Daily. Counsel for IMG further stated that the proposed use of the title The Daily would confuse IMG's readers and that News Corporation should adopt a different mark. See Exhibit B.

21. On December 1,2010, TDH responded through its counsel that the words

"the daily" cannot constitute a trademark for a publication because those words are generic and unprotectible, and denote any sort of media outlet that is produced or updated on a daily basis. TDH nonetheless invited representatives from IMG to a meeting so that TDH could hear more about IMG's concerns and attempt to answer any questions IMG had about TDH's plans. See Exhibit C.

7

23331138v2

- .

- .

22. That meeting took place on December 9, 2010. TDH was persuaded by

the statements and demeanor ofIMG's representatives at the meeting that a lawsuit by IMG is not only likely but imminent. TDH will be significantly harmed by IMG's assertion of trademark claims. Though the claims have no merit, the prospect that even a meritless litigation will deter advertisers, sources, consumers and others from doing business with The Daily is all too real. TDH thus cannot stand idly by and allow IMG to place this cloud over the fast-approaching launch of its new and innovative tablet publication.

FIRST CAUSE OF ACTION

(Declaration That IMG Lacks Common-Law Rights In "The Daily")

23. TDH repeats and realleges Paragraphs 1 through 22 of the Complaint as

though fully set forth herein.

24. The actions ofIMG described above present an actual and ripe

controversy between parties with genuine adverse interests.

25. This Court should declare that the words "The Daily" are generic and not

a protectible trademark for the name of a publication, including, without limitation, under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), under New York law or any other state's law.

SECOND CAUSE OF ACTION

(Declaration of No Infringement ofIMG's Registered Marks)

26. TDH repeats and realleges Paragraphs 1 through 22 of the complaint as

though fully set forth herein.

8

23331138v2

" .

27. The actions of IMG described above present an actual and ripe

controversy between parties with genuine adverse interests.

28. This Court should declare that TDH's use of The Daily does not infringe

any of IMG's federally registered trademarks, including without limitation that there is no infringement under the Lanham Act 15 U.S.C. § 1114.

[remainder of page intentionally left blank]

9

23331138v2

· .

PRAYER FOR RELIEF

WHEREFORE, TDH prays this Court for:

a) A declaration that "The Daily" is a generic phrase that cannot constitute a trademark for a publication under the common law, including section 43(a) of the Lanham Act, 15 U.S.C § 1125(a), as well as state law.

b) A declaration that TDH's use of The Daily does not constitute infringement of any oflMG's federally registered trademarks under 15 U.S.C. § 1114.

c) A preliminary and a permanent injunction forbidding IMG from any further assertion of its purported trademark rights vis-a-vis The Daily.

d) An award of costs, including TDH's reasonable attorneys' fees in this action.

e) Such other and further relief as the Court may deem just and proper.

Dated: New York, New York December 9,2010

DEBEVOISE & PLIMPTON LI,l

By: ~4 l=~~

David H. Bernstein dhbernst@debevoise.com Jeremy Feigelson jfeigels@debevoise.com

919 Third Avenue

New York, New York 10022 (212) 909-6000

Attorneys for Plaintiff The Daily Holdings, Inc.

10

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newspaper/publication/whatever that other people don't want him to have? First it was The Daily Planet, until DC Comics, which owns the right to that name, had its say. Now Murdoch has settled on The Daily, but IMG, the talent agency -turned-media powerhouse, is protesting,

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Legal Challenge to Murdoch's iPad Tabloid Brewing

retweet

J!FF'S NEW POST

What Exactly Is Rupert Murdoch's Daily iPad Thingy?

JEFF'S NEW POST

Si.1ays il)}O

"We are very, very concerned about this," says Brandusa Niro, vice president and editor in chief of IMG Publishing, which puts out a newspaper called The Daily that covers fashion, gossip and media. Niro continues:

Why Tina Brown's NewsBeast Deserves Your Skepticism

JEFF'S HEADUNE GRAB

5 r1ay~ ago

We've already noticed significant confusion for the past two weeks, people calling us saying, Are you doi ng a story on us? Who is this person from The Daily who has been calling, etc. Turns out it's not from The Daily, it's from another The Daily ...

Scrawl of Duty: Novelists and Journos Defect to Video Game Industry

OBSl:RVER.COt..,

• • • • • •

i i

\

Not only is there confusion, but we are also already seeing a dilution of our trademark due to Murdoch's use of The Daily. People wonder which is which, and is The Daily, who they know and read, changing format, becoming something else etc. The Daily Front Row is a registered trademark. Our publication has been referred to as The

MOST POPULAR

MY POSTS All PO&U Lilst 24 Hours

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http://blogs.forbes.comljeffbercovici/2010/11122/Iegal-challenge-to-murdochs-ipad-tabloi... 11122/2010

Legal Challenge to Murdoch's iPad Tabloid Brewing - Jeff Bercovici - Mixed Media - Fo... Page 2 of 3

'. &

1.l:lily for eight years. And we abo have UUI' own app, our own website ("hieh is 7 Yl·ars old), our own multimedia components.

We turned this matter over to our lawyers.

This could be fun. Niro's Daily is a small and, outside of the fashion world, somewhat obscure publication, but IMG has serious clout. Owned by billionaire Teddy Forstrnann, it's a fast-growing; conglomerate whose ]1usinc'sses.s.UillJ...5J1QJ:t:·; l11ark~lLnz,_lWl;;leling-, events and media.

On the other hand, The Daily is about as generic a name as you can get for a daily news publication, You can trademark a specific expression of a name like that, but not the name itself. In fact, that's exactly what News Corp. appears to have done in its own trademark filing. On Oct. 22, 2010 - the day I published my story saying that was the name News Corp. was planning to use - an entity called News DP Holdings filed a trademark application seeking to use that name for "entertainment services, namely, the provision of multimedia content distributed via mobile and stationary consumer electronic devices." The logo pictured at the top of this post

was part of the application.

A News Corp. spokesman declined to comment on whether the filing was made by his company, as did the attorney of record listed in the filing, one Joel D. Leviton.

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ABOUT ME

I've been covering the business of news, information and entertainment in one form or another for more than 10 years. Most recently, I was part of the Great Premium Content Experiment at AOL as a media columnist for the business website DailyFinance. Before that, I created a media blog for Conde Nast Portfolio (R.I.P.). Earlier, I was part of the re-relaunch team for Radar magazine (again, R.I.P.), where I wrote about media, entertainment and politics, and I also spent a couple of years co-writing the media column in WWD. I'd probably he bored of this beat by now if everything weren't so radically different than it was when I started.

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BOSTON

HARTFORD

NEW YORK

NEWARK

PHILADELPHIA

STAMFORD

WILMINGTON

McCARTER &ENGLISH

ATTORNEYS AT LAW

November 23. 2010

VIA FEDERAL EXPRESS

Lawrence A. Jacobs

Senior Executive Vice President Group General Counsel

News Corporation

1211 Avenue of Americas New York, New York 10036

Re: THE DAILY and THE DAILY FRONT ROW

Dear Mr. Jacobs:

We represent IMG Worldwide. Inc. ("IMG"). As you probably are aware, IMG is a global sports entertainment, fashion and media company. Our attention has been directed to News Corporation's (" News Corp. n) recent adoption of the designation THE DAI L Y in connection with a daily news report to be published via the Apple® iPad™.

IMG is the owner of the trademarks THE DAILY and THE DAILY FRONT ROWand has used these trademarks since 2004 in connection with magazines and a website covering fashion events and other cultural events. Since August 2010, IMG has also made available an iPad™ multimedia application to consumers through which they can access content from THE DAILY FRONT ROW. Through its magazine and DAIL YFRONTROW.COM website, readers are provided with front row and backstage access to fashion designers, their clothes and runway shows and related events. For example, issues of THE DAILY magazine are printed and distributed each day of the Mercedes-Benz New York Fashion Week. THE DAILY also publishes issues covering both Mercedes-Benz Fashion Week Swim in Miami, Art Basel in Miami, ENK's Coterie garment industry trade show, and New York's Tribeca Film Festival.

IMG enjoys a prominent reputation in the field of fashion publishing among fashion professionals and the public at large. As a result of its well-known reputation, IMG's THE DAILY and THE DAILY FRONT ROW trademarks have become well-known for such publications. Moreover, IMG has extensively promoted THE DAILY and THE DAILY FRONT ROW brands throughout the United States through its website. As a result, IMG has developed a valuable goodwill in THE DAILY and THE DAILY FRONT ROW marks since their adoption in 2004.

IMG owns two (2) United States trademark registrations for THE DAILY FRONT ROW, namely Registration Nos. 3206645 and 3745679 (copies attached). Although

ME11089541Ov.2

News Corp. November 23,2010 Page 2

IMG does not own a United States trademark registration for THE DAILY, it claims common law rights in this mark, which are based on use.

IMG believes that News Corp.'s proposed use of THE DAILY in association with a news reporting application for the iPad™ and other tablet devices (i.e., the identical media to IMG's application) will mislead readers, advertisers, wholesalers, retailers, fashion professionals and the general public into believing that News Corp.'s publication originates with IMG or that it is approved, sponsored or supported by IMG. Indeed, actual consumer confusion has occurred. IMG believes that News Corp. is no more eager to suffer such confusion than is IMG. Accordingly, IMG requests that News Corp. adopt a different mark, one that does not create confusion with IMG's THE DAILY and/or THE DAILY FRONT ROW trademarks.

If you believe that IMG is mistaken in its conclusion that confusion is likely between IMG's trademarks and your designation, we welcome hearing from you. However, if we have persuaded you that there may be substantial confusion, it stands to reason that as the junior adopter, you will consider using an alternative designation.

We look forward to hearing from you.

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Very truly yours,

Gary H. Fechter

GHF:dl

Enclosures

ME1 1089541Ov.2

DEBEVOISE &. PLIMPTON LLP

919Third Avenue Nr.w York. NY 10022 Tel 212 909 6000 www.debevolse.corn

December 1, 20 I 0

Jeremy Fcigdson Partner

Tel 2) 29096230

fu 212 52) 7230 jfcigclson@deb.-voise.com

BY EMAIL AND FIRST-CLASS MAIL

Gary H. Fechter, Esq. McCarter & English, LLP 245 Park Avenue

New York, NY 10167 gfechter@mccarter.com

Re: Tbe Daily

Dear Mr. Fechter:

On behalf of The Daily Holdings, Inc. ("TDH"), a subsidiary of News Corporation, this responds to your letter dated November 23,2010 sent on behalf of JMG Worldwide, Inc. ("IMO") regarding our client's planned launch of a new tablet-based publication called The Daily.

Both we and our client are surprised by your letter. The words "The Daily" simply cannot constitute a trademark for a publication. Those words are generic and unprotectible, because they denote any sort of media outlet that is produced or updated on a daily basis. There are thousands of such media outlets, many of which use "Daily" in their names. IMG itself expressly disclaims the word "daily" in its own trademark registrations that are attached to your letter.

Moreover, although confusion is not relevant in the context of a generic and unprotectibJe phrase, TDH's use of "The Daily" will not create any confusion either with IMO's registered marks or with its asserted common-law mark.

Although we do not see legal or factual merit in IMO's position, we invite you to a meeting where we could hear more about IMO's concerns and attempt to answer any questions that IMG may have about TDH's plans. Please let us know your and your client's availability to meet with us next week.

New York • Washington. D.C. • Loudon • Paris • Frankfurt • Moscow • Hong Kong • Shanghai

Gary H. Fechter, Esq.

2

December J, 20] 0

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cc: David H. Bernstein, Debevoise & Plimpton LLP James Marcovitz, Esq., News Corporation

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