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Gordon & Breach v. American Institute of Physics and American Physical Society.

Abstract in three sections of the U.S. case drawn from the three decisions of the Judge, the Honorable Leonard B. SAND of the U.S. Second District Court in New York City

From the 1994 decision:

This action, a dispute between publishers of scientific journals, raises an issue of first impression: whether a non-profit publisher may be sued for false advertising under the Lanham Act for publishing comparative surveys of scientific journals which, through the employment of a misleading rating system, rate its own publications as superior.

Plaintiffs Gordon and Breach Science Publishers S.A., STBS, Ltd., and Harwood Academic Publishers GMBH (collectively, "Gordon and Breach," or "G&B") are part of an international group of publishers which publish and distribute a wide range of technical, scientific, medical, commercial, and business journals and books. Defendants the American Institute of Physics ("AIP") and the American Physical Society ("APS") are non-profit physics societies; they publish physics journals which share a readership with some of the for-profit journals published by G&B.

G&B brought this action after articles comparing scientific journals by price and value appeared in 1986 and 1988 in two publications published by AIP and APS, Physics Today and the Bulletin of the American Physical Society. The articles, by Henry Barschall, a physics professor and APS officer, undertook to rank selected journals in terms of "cost-effectiveness" (based on the journals' price per thousand characters) and "impact" (based on the frequency with which each journal has been cited in the academic literature). As it happened, journals published by AIP and APS scored near the top in the articles' rankings, and several of G&B's journals were ranked at or near the bottom.

These articles, G&B alleges, constituted the start of a "continuous promotional campaign" waged by AIP and APS against them with the aid of Barschall's survey results. First, G&B alleges, AIP and APS distributed "preprints" of the 1988 survey results to librarians (the primary purchasers of scientific journals) at a conference in June 1988. Since that time, G&B alleges, defendants have continued to disseminate the results of Barschall's surveys to prospective purchasers through press releases, letters to the editor, "electronic mailings," and meetings with librarians ("secondary uses" of the articles). G&B states that its attempts to reach an accommodation with defendants have been fruitless, and that it has been forced to resort to the courts. After filing a series of legal actions in Europe claiming unfair competition, and failing to receive satisfaction in Swiss, German, and French courts, G&B brought this lawsuit in September 1993.

G&B contends that the articles are promotional materials cloaked in the deceptive guise of "neutral" academic inquiry, and thus constitute misleading advertising under the Lanham Act, 15 U.S.C.  1125(a), and comparable provisions of New York General Business Law. Barschall's studies, G&B contends, far from being neutral, in fact constitute a "cynical promotional campaign" by AIP and APS to deceive librarians and other consumers of scientific journals into thinking that their journals have been "scientifically" proven to be of superior value. G&B contends that discovery is needed to uncover the "internal planning" behind defendants' "campaign" and to show the extent of Barschall's "involvement with defendants." It seeks damages and to enjoin defendants from making further promotional use of Barschall's studies.

Defendants move to dismiss on four grounds: (1) that the suit is time-barred by a three-year statute of limitations; (2) that the 1988 amendments to the Lanham Act, which extended the Act to encompass product disparagement claims, should not be applied retroactively to G&B's claims; (3) that the articles are not "false or misleading" within the meaning of the Lanham Act; and (4) that the articles do not constitute "commercial advertising or promotion" under the Act. We heard oral argument on December 16, 1993, granted a preliminary stay of discovery for the pendency of the motion, and ordered additional briefing on the language of G&B's proposed injunction. We now grant defendants' motion in part and deny in part.

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From the 1995 decision of Judge Sand:

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Defendants, pleased with the survey results, naturally sought to share the good news with interested society members -- principally physicists -- and both current and potential future subscribers -- primarily librarians. The dissemination of Barschall's favorable findings took a variety of forms, namely: (1) the distribution of prepublication copies of the 1988 survey results to librarians at a conference in June 1988; (2) presentations of the survey results in November 1988, November 1991, and May 1992 by Harry Lustig, a senior officer of APS, to physicists and librarians; (3) specific references to the 1986 article at a conference of librarians in June 1987 and to the 1988 article at a similar symposium in June 1989; (4) numerous mailings throughout 1987, 1988, and 1989, some of which were merely planned but never effectuated, to members and librarians, in the United States and abroad; the mailings consisted of letters containing promotional references to, and often accompanied by reprints of, the most recent Barschall survey; and (5) advertisements for APS journals, describing the journals in such terms as "the most cost-effective."

Concluding that the articles themselves were more informational than purely commercial,1 this Court, by decision dated August 15, 1994, granted defendants' motion to dismiss the claims arising from the publishing of the articles, but denied defendants' motion to dismiss all claims related to the subsequent uses of the survey results. Bifurcating discovery, the Court limited it in the first instance to those matters that related to the extent of defendants' contacts with librarians and other prospective purchasers of their journals (the "secondary uses"), in particular whether those contacts were extensive enough to constitute "commercial advertising or promotion" under the Lanham Act.

Having undertaken such discovery, plaintiffs now move for an order vacating the Court's earlier dismissal of part of the complaint, under Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 60(b)(2), and granting plaintiffs leave to amend the complaint, pursuant to Fed. R. Civ. P. 15. Plaintiffs move on the grounds that extensive discovery has yielded new evidence revealing close interaction between Barschall and several senior APS and AIP officers -- information previously unknown to plaintiffs and to the Court. Defendants cross-move for summary judgment on two grounds: (1) that final judgments rendered in this matter in Germany and Switzerland preclude plaintiffs from relitigating their claims in this Court; and (2)that the secondary uses are not commercial speech. The Court heard oral argument on June 26, 1995. We now deny plaintiffs' motion and grant defendants' motion in part and deny such motion in part.

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From the 1997 decision:

Plaintiffs, affiliated commercial publishers of scientific journals, brought this action against defendants, not-for-profit physics societies. Plaintiffs seek to enjoin defendants from claiming in promotional materials that studies show defendants' physics publications, as measured by cost per printed character or cost per citation received within a particular timeframe, to be more "cost-effective" or "better bargains" than those published by plaintiffs. Plaintiffs claim primarily that the studies relied upon by defendants fail to measure cost-effectiveness, making the promotions literally false representations of fact, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a). Some nine years after the original publication of the challenged material, and after parallel proceedings in three different foreign jurisdictions, two prior published opinions by this court, and a seven-day bench trial, the Court makes the following findings of fact and reaches the following conclusions of law.

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CONCLUSION Barschall's methodology has been demonstrated to establish reliably precisely the proposition for which defendants cited it -- that defendants' physics journals, as measured by cost per character and by cost per character divided by impact factor, are substantially more cost-effective than those published by plaintiffs. Plaintiffs have proved only the unremarkable proposition that a librarian would be ill-advised to rely on Barschall's study to the exclusion of all other considerations in making purchasing decisions. This consideration in no way makes Barschall's study or defendants' descriptions thereof false, and accordingly judgment is granted to defendants.

End of abstract