In a much prouder era, The Tennessean forced state lawmakers to hold open meetings, overturned a rigged Congressional election and chronicled the epic fights of the civil rights movement from the front lines. Today, the morning daily is suing Murfreesboro’s Daily News Journal (DNJ) for using the phrase “A.M.” in a weekly supplement and in a separate marketing campaign.
Last week, a judge ruled that The Daily News Journal had to halt, at least temporarily, publication of its modest, one-day-a-week “Rutherford A.M.” supplemental mailing that it had launched two weeks earlier, because of a possible conflict with The Tennessean’s own plan to launch a two-day-a-week local section of the same name. According to Davidson County Chancellor Ellen Hobbs Lyle, the DNJ’s mailing used graphics identical to The Tennessean’s Williamson A.M. and Davidson A.M. sections. Those two supplements are the model for The Tennessean’s impending publication in Rutherford County.
The judge also ruled that the DNJ can’t market its paper as “Rutherford’s A.M.” on its news racks or in advertising material.
But the Nashville daily also got the sharp edge of the knife. Lyle ruled that the Gannett daily either will have to delay its plans to publish the Rutherford section until a September hearing or call it something else until the dispute is settled. Like Williamson A.M. and Davidson A.M, The Tennessean’s Rutherford counterpart is expected to offer an innocuous collection of neighborhood news stories about road closings, ice cream parlors and school projects.
Having seen The Tennessean receive a tough blow from the judge, the pesky, 155-year-old Daily News Journal has proven to be a surprisingly competent foe. The publisher, Tom Larimer, chose to fight rather than negotiate, and retained attorney Wally Dietz, who seems to relish bruising the big, bad Nashville daily. He hails from the elite, downtown firm of Bass Berry & Sims, which is defending the underdog for a change.
“The Daily News Journal is exploring a possible countersuit,” Dietz says. “If either party has a right to sue, it would be them.”
Both feuding papers belong to chains. Gannett, one of the largest media companies in the world, publishes The Tennessean, while the far smaller Mid-South Publishing, a wholly owned subsidiary of Morris Newspaper Corp. in Savannah, Ga., publishes the DNJ.
The DNJ introduced Rutherford A.M, a modest local news publication mailed to non-subscribers, just a month ago. This supplement was more of a marketing ploy designed to hook new readers; it wasn’t supposed to be a regular publication. DNJ mailed 14,000 copies, and another 2,000 were distributed free in news racks. In the world of newspapers, this is really small stuff.
“This was a temporary marketing piece we were going to use for no more than six months,” Larimer explains. “There was no intent to confuse anybody. We always had our Daily News Journal name right there with it.”
In fact, the familiar DNJ masthead ran just below the Rutherford A.M. name, making it abundantly clear who published the mailing.
But The Tennessean sued anyway, claiming that the DNJ’s limited use of “A.M” nevertheless amounts to trademark infringement, unfair competition and violation of the Tennessee Consumer Protection Act. The argument of Tennessean lawyers is that the DNJ intentionally tried to mislead readers into thinking that its product was published by The Tennessean, muddying the waters for this month’s planned debut of the Nashville daily’s own Rutherford section, for which an editor, a production manager and two sales staffers already have been hired.
“The Daily News Journal’s publication of Rutherford A.M. has already caused confusion among the general public, Tennessean subscribers and advertisers in Rutherford County,” the Nashville newspaper’s lawsuit reads. “The Daily News Journal could have chosen from an infinite number of names for its new publication, but it chose Rutherford A.M., knowing that The Tennessean published Williamson A.M. and Davidson A.M.”
That argument assumes that the DNJ and the small Mid-South Publishing company could in some way benefit from confusing their mailing with the planned Tennessean sectionsomething the defense denies. “Mid-South has no desire to copy The Tennessean, because it is The Daily News Journal’s marketing strategy to set itself apart from The Tennessean as much as possible,” the defense response reads.
Larimer concedes that there are “striking similarities” between the graphics in his publication and the Gannett supplements, but insists that was a mere coincidence. In any case, it’s hard to imagine how a reader would think that his Rutherford A.M. was a Tennessean product, given that the DNJ masthead runs just below it. “There’s nothing to gain by copying them,” Larimer insists.
By launching its own Rutherford A.M., the DNJ might have hoped to co-opt The Tennessean’s “A.M.” product in Murfreesboro, which they had to know was coming. The Tennessean had also recently tried to purchase the Murfreesboro Sun, a weekly paper, but was outbid by Mid-South Publishing. So the Gannett daily clearly had its sights on Rutherford County. Given that The Tennessean had already launched Williamson A.M. and Davidson A.M., Mid-South had warning that they’d soon probably have to contend with Tennessean competition in their neighborhood.
But both Larimer and Dietz insist that’s simply not the case. “The Daily News Journal had no clue The Tennessean was coming in with a Rutherford A.M. section,” says Dietz, whose client is either naive or coy. “They thought that Williamson A.M. was started because [Tennessean editor] Frank Sutherland lived in Williamson County and that Davidson A.M. was a response to The City Paper.”
In any case, even in the likely scenario that the DNJ was trying to rankle its bigger Nashville neighbor with its mailing and promotional references, there may not be anything wrong with that.
The Tennessean claims that the DNJ’s use of the phrase “A.M.” amounts to trademark infringement, but may not have the courts on its side. For one, in what non-Orwellian world does an entity enjoy exclusive right to a phrase used to refer to the first half of the day? In any case, it’s not uncommon for newspapers to use “A.M.” and “P.M.” to describe themselves or their sections to their readers.
“This is not new to The Tennessean,” Dietz explains. “Papers from South Florida to Seattle, from Costa Rica to Scotland have used it. I doubt many publishers in Tennessee think that The Tennessean has the exclusive right to use the phrase 'A.M.’ ”
Then there’s the issue of legal precedent. In 1992, a federal Court of Appeals ruled against Bristol-Myers Squibb, the makers of Excedrin PM, which had argued that the maker of Tylenol PM was not entitled to use the “PM” term to describe its medication. The defendant basically told the court that the “PM” term was used to describe a pain medicine meant to be taken at night. Every now and then, common sense wins out in the courts.
Will it triumph in Davidson County? Possibly. In her memorandum, Chancellor Lyle explained that The Tennessean’s proof of trademark infringement “falls short at this preliminary stage.” Lyle wrote that she issued the injunction against both papers until a September hearing, because the Nashville daily nevertheless offered some compelling evidence. Allowing the DNJ to continue publishing its Rutherford A.M., she pointed out, would cause irrevocable harm to The Tennessean in the event a court eventually ruled in its favor. She made the same argument for forbidding The Tennessean from publishing its planned section. It’s a ruling that would make King Solomon proud.
For now, however, The Tennessean plans to proceed with launching a Rutherford County supplement anyway, using the pared down name “Rutherford.”
Tennessean publisher Leslie Giallombardo declined to talk about the specifics of the case, except to say, “I think our company over six years has established A.M. as a part of The Tennessean.”
If a court rules in its favor, the Nashville daily would probably add “A.M.” to the name of its section because at some point it may want to launch counterparts for Wilson and Cheatham counties. Big corporations love to brand their products. They also like to bully the competition, although the DNJ isn’t backing down.
Interestingly, the DNJ stands to gain very little in a legal battle with the Nashville daily. The mailing in question was never meant to be a permanent publication. As for its “Rutherford’s A.M.” advertising campaign, that can’t be worth the price of defending a messy lawsuit. But Larimer seems genuinely offended by The Tennessean’s actions. In fact, he first learned about the paper’s lawsuit when a Tennessean reporter called him for comment.
“I was disappointed and surprised,” he says. “I don’t see any validity in this lawsuitalthough nothing is as simple as you would like it to be.”
As for why The Tennessean didn’t try to settle the matter before running to the courthouse to file a lawsuit, Giallombardo says, “We didn’t make any attempt to call him. He didn’t call us to say he was coming up with a Rutherford A.M.”
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