Fair, Balanced, Loaded with Lawyers

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Fox News is suing Al Franken for trademark infringement, arguing that the comedian doesn't have the right to put the phrase "fair and balanced" on the cover of his new book. Whatever else you might say about this obviously frivolous lawsuit, provoking it is clearly the funniest thing Franken's done in years.

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  1. My favorite Franken gag was his attempt to interview Pat Buchanan. He had to clear his list of questions with a secretary beforehand, including this one: “Have you ever had a homoerotic dream?”

  2. Trademarks have to vigorously defended, otherwise they lose their protection and become generic like ‘xerox’ or ‘kleenex’. This is unlike other government granted monopolies like copyright or patents (which really should require some defending to avoid the “submarine patent” tactic of letting something become popular and then asking for royalties), so it’s not that surprising that Fox is doing this.

    That and OReilly hates Al Franken enough for slapping him damn that he’d probably be willing to pay the Fox lawyers for this. Heh.

  3. Except that no sane judge or jury will accept the idea that “fair and balanced” should be protected as a trademark AT ALL.

  4. Forget about suing Franken for trademark infringement. Someone should sue Fox for fraud for using “fair and balanced” in the first place.

  5. Well, the problem is that “fair and balanced” is likely a mark that requires secondary meaning, thus at best it is a “descriptive mark,” that is a word, picture, or other symbol that directly describes something about the goods or services in connection w/which it is used as a mark.

    If it was a mark that was inherently distinctive it wouldn’t require this, and rights to it mark would be determined solely by priority of use. I don’t see how the term could be viewed as “inherently distinctive”; its its certainly neither fanciful or coined, and its not suggestive either.

    Anyway, a descriptive mark can still be used by others if it is used in its “descriptive sense”; in other words, Fox can’t keep people from using the term in its descriptive sense, but it can keep them from trading on its establoshed meaning.

    So the first defense available to Franken is that he was merely using the term in its descriptive sense. His second defense is in parody or satire, which is protected by the First Amendment.

    BTW, the earlier post concerning the need to defend a TM even when the suit is frivolous is correct; the dangers of becoming a generic mark are high, especially for a descriptive mark like Fox’s.

  6. Here’s an email I sent to Al regarding yet another defense he has:

    A trademark is not supposed to be “deceptively misdescriptive” of the goods the mark is used on. 15 U.S.C. ? 1052. So, what you should do is you state a counterclaim under 15 U.S.C. ? 1119 for cancelation of the Fox trademark registration because “fair and balanced” is “deceptively misdescriptive” of Fox News!

    This does two things, (1) the Fox people soil themselves and (2) you get to take discovery, rummage through documents, depose witness, etc. about whether Fox is “fair and balanced.” Have a field day. Put Rupert Murdoch on the witness stand, get medieval on him. That’s exactly how they got Clinton, it’s only fair to turn the tables on the bastards.

  7. grytpype,

    Oh, I forgot about the misdescriptive issues. Good one. 🙂 Too bad it isn’t “Fair & Balance & From the Planet Earth,” because you could nail for being geographically misdescriptive as well. 🙂

  8. It’s obviously frivolous? I wouldn’t go that far. That’s the job for the courts to decide (the only obvious thing here). They will either rule that it’s parody, as some people here have argued, or that it’s intended to confuse potential buyers as to the source, which is the whole point of trademarks. I can personally see either scenerio playing out.

    Without all the facts (which this news article does not give), it’s difficult to say anything is obvious. Give me 10 minutes, and I can probably pick out 10 people on the street that will tell me they’re “sure” that Kobe Bryant is either guilty or not guilty, even though hardly any facts have been made public. This thing is in the same vein.

  9. I love how right wingers like those at Fox News complain about the prevalence of frivolous lawsuits and the suppression of free speech in the U.S.

  10. Actually, “Fair and Balanced” is indeed a registered service mark – it doesn’t matter if a judge and/or jury think it should be – the US Patent and Trademark Office granted the service mark (No. 75280027) in 1998.

  11. Holly: That the USPTO granted a service mark means, well, nothing. Read the statute and read the cases.

  12. We should have to pay O’Reilly a royalty every time we call someone an asshole.

  13. Holly,

    The USPTO doesn’t put much effort into judging the merits of a TM/SM, etc. There is minimal review of them in other words. So its not like getting a TM is a difficult exercise. Now patent prosecution is another matter, though even there a patent can sail through the PTO without a scratch and be the most ludicrous patent ever granted. This is how the current patent on “frames,” you know the web page design device, was patented long after “frames” came into use.

  14. It just shows Fox’s incompetence. “Neither Unfair nor Unbalanced” is a better tag, shoving it in the eye of the competition, like negative theology. Nobody cares if you’re fair; only that the other guy is unfair. Of course this suit suggests Fox is both unfair and unbalanced. There’s an irony for you. The negation has a dormant meaning with galvanic stirrings.

  15. Eugene Volokh talks about the legal issues here. The key bit:

    “15 U.S.C. sec. 1125(c), which discusses ‘trademark dilution’ (the legal rubric under which tarnishment claims generally fall) specifically exempt ‘All forms of news reporting and news commentary’ as well as ‘Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.’ First, Franken’s book is news commentary. Second, the more that Fox argues that Franken is referring to it, and unfairly competing with it, the more Franken would be able to claim that he is therefore engaging in ‘comparative … promotion’ that identifies his work as an alternative source of commentary to Fox.”

  16. I haven’t seen or read AF’s new book, but I thought he was very fair when he called Rush Limbaugh a big fat idiot. If he want to be balanced he should have added self-aggrandizing blowhard too.

  17. it is curious to think what will happen when all catch phrases are taken. you can see something similar to this in band names these days. i’ve been wondering if that is why they are misspelling the names these days (Korn, Staind, etc).

    Lame.

  18. Isn’t this an example of “fair use”, like a parody?

  19. Sounds like parody to me. Probably a suit designed to intimidate with little hope of actually winning. Anyway, he gets tons of free publicity for his new book, and a great marketing angle “the book Fox didn’t want you to read!!!”

  20. Clearly this is a perfectly valid case of “reasonable confusion” – Fox News is the only source for fair and balanced information, and by using the phrase Franken will simply serve to confuse consumers and possibly defraud them.

    That one is a book and the other is a television network is hardly material.

  21. Brady, you are right about the band name thing.

  22. Fox should be sued for even claiming “fair and balanced.” They should have some slogan like “news for the conservative minded” or gag us with “news fit for a Patriot!”

    As for Al, spare us the details of this book!

  23. What comes to my mind in this whole debate is
    opportunity costs. The cost of Al Franken
    writing a book about politics and economics,
    something he does not know much about, is
    that he does not spend his time doing comedy,
    which is something he knows about. This is
    clearly inefficient, and his statist buddies,
    if they believed their own rhetoric, should
    pass a law making him go back to comedy.

    In fairness, one could make the same point
    to a lesser extent about P.J. O’Rourke.
    His non-political stuff is, on average,
    much funnier than his political stuff,
    though some of the political stuff (parts
    of Parliament of Whores, for example) is
    very funny, as is some of the stuff that
    could fit in both categories, such as his
    travel piece on Sweden (where I am at the
    moment being reminded of his remarks).

    Jeff

  24. Gee! I better rush out and go patent the phrase, “We Bring Good Things to Life.”

  25. Me, too! With my “Pauze That Refreshes.”

  26. OK, guys, but you better stay away from my, “We Sell for Less.”

  27. The fact that trademark applications undergo minimal review is attested to here:

    http://www.despair.com/demotivators/frownonthis.html

    I’m amused by a couple of things – folks must defend trademarks lest they become genericized (Tampax, anyone?). But in this case we have a trademark that’s already hopelessly generic when taken out of context (descriptive). And where is the danger when Al Franken knows perfectly well that his title is only amusing if you already know the original context of the protected mark?

  28. Hey! Come on over to the real Fair and Balanced web site:

    http://www.fairandbalanced.us

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