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Tuesday, 3 May 2005

DON'T BE VAGUE ABOUT VOGUE

Here's another scoop from the LexisNexis-owned Butterworths All England Direct subscription-only online service: today's Chancery Division decision of Mr Justice Pumfrey in Conde Nast Publications Ltd v Peers Hardy (UK) Ltd.

Conde Nast, publisher of Vogue magazine, sued Peers Hardy for passing off when it sold Vogue watches (Peers Hardy's predecessor in title had sold watches under the same name, but Conde Nast maintained that it had stopped doing so). Peers Hardy conceded that Conde Nast had a reputation in relation to the word "Vogue" for magazines, but not for watches. The trial was set to commence on 19 May 2005 and the order for directions gave a date for the exchange of witness statements and expert evidence, providing for one expert witness per party. Two days after that exchange took place, Conde Nast produced a second witness report to the effect that the fact that Peers Hardy had not caused confusion or deception was irrelevant: although Conde Nast had not diversified its trade under the name Vogue, the manner in which magazines now traded was such that the general public expected such diversification. Conde Nast applied for permission to adduce that second expert witness report.

Conde Nast's application was a bit of a wind-up, we think

Pumfrey J dismissed this application, holding as follows:

* In principle the court would not exclude any evidence that was not wholly irrelevant unless it was satisfied that the problems caused by allowing it would be disproportionate to the advantages of allowing it. However, this proposed evidence was expressed with vagueness coupled with hyperbole. This being so, there were serious concerns about the manner in which it was expressed since it lacked any experimental basis for the public’s expectation, making it difficult to deal with any factual assessment which had to be undertaken.

* there were already survey results in evidence purporting to deal with what the public thought. The trial judge would also have the benefit of a large number of witnesses from the public. Consequently, the proposed evidence would be of little effect. What's more, it would pose an enormous challenge for Peers Hardy to respond to it in the short time before trial.

The IPKat thinks this application was a bit of a try-on, with more nuisance value than anything else. Merpel wonders who paid the costs of the hearing and hopes it wasn't Peers Hardy.


More Vogue products and services unconnected with Conde Nast here, here and here
Vague here; Nouvelle Vague here

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