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Unfair and unbalanced (and unfunny)

13 comments on Unfair and unbalanced (and unfunny)

Unfair and unbalanced (and unfunny)
: I’ve defended FoxNews with horrified journalist friends and I’ve rolled my eyes at the once-funny Al Franken but in this case, I have to side with Franken:

Fox News Channel has sued liberal humorist Al Franken and the Penguin Group to stop them from using the phrase “fair and balanced” in the title of his upcoming book.

Filed Monday in Manhattan, the trademark infringement lawsuit seeks a court order forcing Penguin to rename the book, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.” It also asks for unspecified damages.

Fox News registered “Fair & Balanced” as a trademark in 1995, the suit says.

Franken’s “intent is clear – to exploit Fox News’ trademark, confuse the public as to the origins of the book and, accordingly, boost sales of the book,” the suit said.

Sounds like Bill O’Reilly having a hissy fit.

Fox should just have a sense of humor and let it go.

Hey, Fox attorneys, you might want to go after this on competitor CNN and this and this and this and this.

13 responses to “Unfair and unbalanced (and unfunny)”

  1. Harry Avatar
    Harry

    Oh come on, Jeff — think of it as unprogrammed entertainment. Franken is a putz who’s slipped down the pipe to approximately the level of the certifiable John Connolly (of “Insane Clown Posse” fame). Both he and his publisher knew he was bearding Fox, and what might happen. And it’s a no-lose situation for Fox: they can smite an irritant and claim it’s in the name of trademark protection. It’ll be interesting to see how much it costs Franken’s publisher. Hope they haven’t printed the jackets yet… :)

  2. Joe Maller Avatar
    Joe Maller

    Actually Harry, Fox’s lawyers just sold a few thousand more copies of the book. When will people learn that trying to stop something like this inevitably results in more publicity for the thing they’re trying to stop?
    Also, this is absolutely a case of fair use by critism and/or parody. This lawsuit will likely be dismissed long before trial. Groundless case, more sales for Franken, lose-lose for Fox. Not too bright on their part.

  3. Hiram Avatar
    Hiram

    We all should have more of a sense of humor about things, Jeff. Even things like seatless scooters for Episcopalian bishops.

  4. Shag from Brookline Avatar
    Shag from Brookline

    I can understand why Jeff likes “Franken-Sense”. But what would be Jeff’s view if he made it onto Fox’s payroll?

  5. Del Simmons Avatar
    Del Simmons

    As I commented at my own blog:
    This type of lawsuit is often needed so that a trademark holder can show in court later that they were doing everything possible to defend their trademarks. It is quite possible that Fox knows they will loose this but they need the legal protection of being able to say they tried to defend themselves.
    A lack of an attempt to vigorously defend a trademark has contributed to trademarks being lost in the past. This could just be a legal maneuver for such a case at a later date.
    It’s quite silly either way.

  6. Howard Owens Avatar
    Howard Owens

    You can say this is great publicity for Franken.
    I think it’s great publicity for Fox. It reminds people how important the “fair and balanced” image is to them (insert favorite cynical jab here), let’s them play the victim role (building brand loyalty with regular viewers), and gets people, like us, talking about them and thinking about them, increasing mind share.
    Smart move by Fox — what do they care if AF sells a few more thousand books?

  7. ruprecht Avatar
    ruprecht

    Even if Fox wins the suit Al Frankin wins in the long run. He can change the name to BILL O’REILLY IS A BIG TALL IDIOT and roll with all the free press.
    Claiming it will confuse the market place does sound like real patent protection talk. Fox has a low opinion of thier viewers if they really think that’s true.

  8. HH Avatar
    HH

    Or, Franken could actually not put other, more famous people and names on the cover and try to sell his book based on his writing and beliefs alone. Oh wait, he tried that after “Big Fat Idiot” and now we have this.

  9. PhotoDude Avatar
    PhotoDude

    Del: “This type of lawsuit is often needed so that a trademark holder can show in court later that they were doing everything possible to defend their trademarks.”
    And how many other lawsuits do you think Fox has filed over this trademark? As I stated in my blog, the web is filled with tens of thousands of references ot this phrase. My own blog shows up on the third Google page of returns, while Franken’s book doesn’t show up until page 16.
    If this is only about trademark infringement, Fox should be suing a whole lot of folks prior to Al Franken. The fact they are only suing one well known enemy makes their case all the more transparent and foolish.

  10. Harry Avatar
    Harry

    “Also, this is absolutely a case of fair use by critism and/or parody. This lawsuit will likely be dismissed long before trial. Groundless case, more sales for Franken, lose-lose for Fox. Not too bright on their part.”
    I’m sure it is fair use, but that’s not the point. (Re-read my comment slowly…) Fox has no expectation of winning a lawsuit. This is all about raising the cost of pulling Fox’s chain. Furthermore, Fox doesn’t give a damn if Franken sells a few thousand more books. As should be obvious, Franken will *have* to sell more than a few thousand more books for Penguin (or whoever it is) to cover the legal costs. It’ll play very will with Fox’s audience and a fair number of others. People who already didn’t like Fox will deride the whole thing, but, again, that’s of no importance.

  11. Marc Avatar
    Marc

    As a trademark litigator I have more than a passing familiarity with the issues raised by Fox’s suit. There are two basic claims, infringement and dilution. To prove infringement Fox must show a likelihood of consumer confusion arising from Franken’s use. Not one or two rubes, but a likelihood of a significant level of confusion. Dilution requires that Fox show that the mark is worthy of protection from dilution and that Franken’s use is dilutive of Fox’s rights.
    The mark “fair & balanced” is what trademark folk would call a laudatory mark, like “the best burger in town.” Such marks are inherently weak and entitled to a limited scope of protection. Fox could articulate a plausible claim against CNN, perhaps, if it adopted the same mark to promote the same services.
    Franken is not in Fox’s business. More importantly, Franken is using the words “fair and balance” in their primary, non-trademark sense. To the extent that Franken may also be using the phrase to refer to Fox, such use is protected as “nominative” fair use. In addition to these obstacles to Fox’s claim, Franken is engaged in political commentary. The first amendment gives him a broad zone of protection. Remember, free speech is a constitutional right. Trademark law is a mere creature of statute.
    Based on what I know of the suit, Fox’s trademark infringement claim is frivolous on its face. The dilution claim is on even shakier ground since laudatory marks are virtually ineligible for dilution protection. The complaint contains gratuitous disparaging comments about Franken, which tends to reinforce the impression that the suit was brought for the sole purpose of harrassment.
    The notion that Fox is merely policing its mark is, with all due respect, a silly argument. As has already been pointed out, third-party use of this phase is widespread and significantly predates Franken’s. If Fox were genuinely policing its mark against others, Franken would be well down the list rather than the only target. There is a great risk in Fox bringing this action. The court could find the mark weak or unprotectible, thereby limiting Fox’s “rights” in the “mark.”
    Marc

  12. Harry Avatar
    Harry

    ‘There is a great risk in Fox bringing this action. The court could find the mark weak or unprotectible, thereby limiting Fox’s “rights” in the “mark.”‘
    No doubt, *if* this suit ever sees the inside of a courtroom. Which is highly doubtful. Fox is just bullying Franken and Penguin, for the same reason that a dog licks his privates.

  13. Chris Avatar
    Chris

    Once-funny? When? When he was a humorist sans politics? And a one-offed qualifier makes you so…well…fair and balanced?

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