'MEN'S HEALTH' FILES SUIT AGAINST 'MEN'S FITNESS': RODALE ACCUSES WEIDER TITLE OF IMITATING LOOK AND FEEL OF COVER

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Men's Health and Men's Fitness will flex their biceps and square off in the courtroom to determine whether the look and style of a magazine's cover are protected by trademark law.

Rodale Press, Men's Health's parent, filed suit April 19 against Weider Publications' Men's Fitness, charging unfair competition and "trade dress" infringement.

In simple terms, "trade dress" refers to the packaging or look of a product, and can apply to a label or cover of a book or magazine. The suit charges that, beginning with the January 1999 issue, Men's Fitness changed its cover format to resemble Men's Health in a deliberate attempt to confuse newsstand buyers.

CONSUMER CONFUSION

"This goes well beyond the usual 'borrowing' to what is clearly an attempt by a magazine with declining single-copy sales to imitate our entire cover approach . . . in order to create confusion in consumers' minds," said Men's Health Editor in Chief Michael Lafavore in a written statement to Advertising Age. "In fact, we have been receiving complaints from customers who bought Men's Fitness thinking it was Men's Health."

A Weider Publications spokeswoman said company executives will not comment while the lawsuit is pending.

According to papers filed in U.S. District Court for the Eastern District of Pennsylvania, Men's Health claims certain elements are proprietary to its cover, and that Men's Fitness' use of them violates "trade dress."

Men's Health has for the past few years used b&w photos of bare-chested male models on the right side of its covers, with headlines on the left side. The suit alleges Men's Fitness replaced color photos of male models with b&w shots, and mimicked Men's Health's cover lines.

It's hard to point to a fiercely competitive category where titles don't occasionally run similar covers. Time and Newsweek, for example, sometimes feature the same cover subject and have been known to use nearly identical photos and cover lines. But Rodale executives believe Weider intentionally set out to confuse readers, and that its actions will dilute the value of Men's Health's trademark.

HAPPY TO COMPETE

"I'm not suggesting any publisher can garner an exclusive right to a concept," said Paul McGinley of Gross, McGinley, LaBarre & Eaton, Rodale's Allentown, Pa., attorney for this case. "Rodale and Men's Health are more than happy to compete with Men's Fitness in this category. The problem is when it gets to the point of the two titles being so closely similar that a newsstand purchaser would find it almost impossible to distinguish between the appearance of magazines. That's when it's gone too far."

On Feb. 1, Rodale executives wrote Weider the first of three letters demanding Men's Fitness modify its covers, the suit said. Rodale Magazine Division President John Griffin contacted Weider Publications President-CEO Michael Carr by phone and was led to believe Men's Fitness would change its covers, the suit stated.

But only the March issue was different. April and May issues of Men's Fitness once again used b&w photos and left-side cover lines. The June issue features a similar layout but uses a color photo.

Rick Kurnit, a partner at Frankfurt Garbus Klein & Selz who specializes in intellectual property and advertising law, said most "trade dress" cases hinge on whether or not a plaintiff can prove the similarities caused customer confusion.

While style and art direction of a magazine can not be trademarked, if certain elements are used consistently enough to be considered "identifiable" rather than merely "functional," then those elements would be protected since consumers depend on them to identify the product, said Mr. Kurnit.

The circulation of 13-year-old Men's Health is more than four times that of 15-year-old Men's Fitness. The same is true for the number of copies each title sells at newsstands. For the second half of last year, Men's Health was up 7.5% in total circulation to 1.62 million, while single-copy sales were up 31.1% to 429,818, according to Audit Bureau of Circulations. For the same period, Men's Fitness was up 16.1% in total circulation to 351,148, while single-copy sales

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