At the end of the year a new participant appeared on the overcrowded programme guide market with its depleting circulation figures. According to the publisher of the competing Színes RTV the new Színes TV Műsor have committed trademark and character infringement and because of this have initiated a court action and requested the licence for the magazine be withdrawn.
“With the publishing in December of Színes TV műsor in its given form its publisher has committed trademark and character infringement" said László
Pintye, the director of the competitor magazine Színes RTV. According to his standpoint the new publication is deceivingly similar from several points of view to Színes RTV, which has been on the market for quite some time. Due to this deception they have appealed the issue of the licence at the Ministry of Cultural Heritage and asked for it to be deleted. They have initiated a court action for trademark and character infringement.
Színes RTV
According to the opinion of the magazine’s director there are several similarities between the two publications. Such are the form of the logo on the cover page and it position, the font type used in the titles, the way of stating the name of the person appearing on the cover, the position of the band presenting the films at the bottom of the page. The structure of primarily the daily recommended viewing section and the colours used on the pages showing the daily programmes are similar. Naturally, similarity does not necessarily go contrary to the law.
Színes TV Műsor
The issue here is characteristics on the basis of which “people recognise the competition and its goods". Looking at the same thing in another sector, if the bottles of two types of pálinka are the same – standard bottle – and both of them have rectangular labels on them of a similar size, then this is not necessarily a problem. However, it is a different thing altogether if we are talking about the Zwack Unicum bottle and the cross on the label, as these are all basic characteristics of Unicum. (In the past year the distribution of a product was banned that had tried to get onto the market with packaging and a name similar to that of Unicum with a small modification of the brand mark – a rotated cross.)
Obviously programme guides are more similar to each other than other magazines, as what the editors have to work with is more or less set, and the television programmes are the same. For the customer these products are less different than political daily newspapers, for example. Just because of this similarity in form confusion between the products may occur with greater probability. The two "Színes" programme guides have several similar form elements, but they are clearly different in size, for example, and in the quality of the paper. What is questionable is how characteristic the similarities and differences are to the consumer.
The devices of distinction
An interesting case of the similarity between two products – which, however, did not cause any legal problem – comes from the book market. As a result of Imre Kertész’s Nobel Prize the demand for his books has suddenly jumped. According to a statement by the publisher the number of reprint copies ordered before the prize was awarded was 3 thousand, but during the whole year the total number of Imre Kertész’s books sold was over 200 thousand. The degree of the increase shows that earlier the majority of customers had not even heard of Imre Kertész, they only wanted to by his books after him winning the Nobel Prize, apart from the prize they knew nothing else about the author. According to book market gossip there was, at first glance, a surprising beneficiary to the lack of knowledge due to the sudden jump in popularity, Ákos Kertész. Some of those who wanted to buy Kertész books could only remember the surname of the author and so they bought the books of someone with the same name instead of those of the Nobel Prize winner. If only every hundredth customer made a mistake, then this could have easily caused the sudden jump in the sales of books by Ákos Kertész.
A basic marketing axiom is that a new product is able to gain a market share by gaining a share from an earlier participant on the market or by satisfying new market demands (market creation). The appearance of Színes TV Műsor can be viewed as, to use a classical marketing expression, a “frontal attack", in other words the case when a company that wishes to gain a market share from a competitor company gets a share of the market by attacking its strong points. (Színes RTV is one of the publishers most valuable products.) The attacker probably wants to get a part of the attacked market by using similarity, in such a way that the new publication should conform to the demands of the readers as much as possible and provide a competitive advantage with a lower introductory price. Of all the classic competition strategies Színes TV Műsor – with a low price – uses a “cost leading" strategy. And with the similarity it reduces the chances of the attacked magazine increasing the chances of defence using a “differentiation" strategy.
On determining the fact of the deception and the possible amount of damages important information for the court may be how the circulation of the two magazines develops. There are no public data regarding the circulation of Színes TV Műsor as yet and in the case of Színes RTV only the data of the Matesz flash report issued in the last few days are known. This report does not show any deviation from the earlier trend. However, the effect, if any, of Színes TV Műsor can not really be shown here, as the new magazine only appeared on the market towards the end of the period under examination.
The law prescribes
Article 6 It is forbidden to produce or distribute goods, services (hereinafter referred to as ‘goods’) without the approval of the competitor with a characteristic appearance, packaging, mark – including origin mark – or name, furthermore, to use a name, mark or label from which the competitor or its goods are usually recognised. (Act LVII of 1996 on the banning of unfair market behaviour and the restriction of competition)
It is less welcoming for the competitor that this equal progression is also accompanied by circulation loss. Over the past four quarters the reduction as compared to the previous quarter – with the exception of one item of data – was between 2.3-7.1 per cent, this means the drop is continuous and even. During the past year – comparing the fourth quarters of 2001 and 2002 – the fall is 13-13 per cent, but even then the number of copies sold is over 300 thousand for both publishers.
Click on picture to view chart
Naturally the fall in the number of copies sold is not only true for these two participants, so in spite of the 13 per cent drop they have managed to retain the second and third place among the non-free publications.
Besides the general circulation reduction on the magazine market the increasingly unreliable programming of the commercial channels is certain to have a bad effect on the programme guides. The frequent starting time differences of several tens of minutes reduce the usefulness of the publications. Although the programmes of the two large commercial channels were frequently late in the past – sometimes they even started early – with the appearance of the reality shows that situation had worsened. Sometimes programmes are not just late, they are even completely left out. The success of a possible joint move of the programme guides against the television channels could result in not only the situation of the individual participants being improved, but the whole programme guide.