Fair and balanced justice
: A trademark attorney tells us the demerits of FoxNews’ case against Al Franken’s use of “fair and balanced” in the comments, below. A snippet:
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.
: See more F&B above.
