Tuesday

'No
ordinary prudent reader would view the contents of the magazines as similar and no reasonable reader seeking the contents of one magazine would turn to the
other'

Judge: Oprah's
O isn't XXX

Tosses trademark suit by German S&M magazine

By Jeff Bercovici

   One helps you achieve your dreams. The other helps you explore your fantasies.
   One is fond of scented candles. The other prefers the hot wax.
   They are both magazines named O, and a Manhattan federal judge has ruled there is no chance of confusing the two.
   Judge John Koeltl yesterday dismissed a trademark infringement lawsuit filed in August 2001 by Ronald Brockmeyer, publisher of a German fetish magazine called O, against Hearst Corp., which publishes O: The Oprah Magazine.
   Koeltl ruled that Brockmeyer's trademark had not been infringed upon as it was "highly unlikely that any consumers, sophisticated or not" would mistake Oprah Winfrey’s self-improvement and lifestyle title for Brockmeyer's publication, which depicts voluptuous women in bondage gear and fantasy settings.
   "No ordinary prudent reader would view the contents of the magazines as similar and no reasonable reader seeking the contents of one magazine would turn to the other," he wrote in his 37-page ruling.
   In a rather drastic understatement, Koeltl observed that the two magazines are "devoted to different aspects of women's lives."
   "It is virtually impossible to find even a single image or article from the plaintiff's magazine that would not be jarringly out of place in 'O, The Oprah Magazine,' and vice versa," he wrote.
   Another factor informing the decision was the weak marketplace presence of Brockmeyer's magazine. Only four issues have been published since 1995, and only one retailer in Manhattan was found to be carrying both titles.
   Brockmeyer, a 43-year-old former business consultant, bought the O trademark in 1995 after the magazine’s original publisher, Techcom GmbH, entered bankruptcy.
   "The legal theory of this case is very simple: a large media giant is trying to take away the future value of one individual's trademark," reads a page on www.defenders-of-o.com, a site Brockmeyer apparently created to generate support for his legal battle. "Hearst is using its money and media power to use someone else's trademark just because they want it for themselves."
   The site also features pictures of Brockmeyer, his wife and his three young daughters, with the caption "Support a family being ruined by a big corporation headed by Oprah!!"

-Jeff Bercovici is a staff writer for Media Life.

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