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Fair and balanced justice

17 comments on Fair and balanced justice

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.

17 responses to “Fair and balanced justice”

  1. Bill Herbert Avatar
    Bill Herbert

    Someone commented elsewhere — at Atrios IIRC — that if 2 Live Crew can claim fair use for its parody of “Pretty Woman” (Campbell v. Acuff-Rose), then this is a no-brainer.

  2. Laertes Avatar
    Laertes

    I’m struck by the attorney’s use of the word “frivolous.” I gather this is a legal term of art with meaning beyond what it carries in the layman’s usage. Don’t “frivolous” lawsuits expose their plaintiffs to court-imposed fines and/or countersuits?

  3. Dave Avatar
    Dave

    Fox is doomed to fail, but I’m not sure if you can call this frivolous. According to trademark law, if you DON’T take steps to protect your tm, you risk losing it.
    Fox is damned if it does and damned if it doesn’t. I think Fox knows it’s going to lose, but it shouldn’t be sanctioned for filing the suit. It’s only doing what tm law requires.

  4. Greg Avatar
    Greg

    Franken’s use of ‘Fair and Balanced’ is no different then his use of Rush Limbaugh on his previous book, its strictly to boost book sales. Why is free speech allowed as a defense when the intent is purely profit? His book won’t be free.

  5. RJGatorEsq Avatar
    RJGatorEsq

    “Frivolous” has a number of definitions in law, including:
    1) Without merit on its face; or
    2) Fraudulent.
    The unnamed “trademark attorney” who supplied the alleged quote is entirely incorrect in characterizing Fox’s case as “frivolous” (if there is such an attorney, and if he or she said what the quote says he or she said); Franken clearly appropriated the mark, and the argumant as to whether the “appropriation” is “misappropriation” is a valid argument that Franken could well lose.
    Also, as Dave noted, if Fox does not take steps to protect its mark, it can lose its rights to the mark.
    Laertes, yes, courts regularly impose sanctions against attorneys who file frivolous suits. It is good of you to note this; lawyer-bashers like to assume that courts never penalize attorneys who act wrongfully, and as you observed, yes, in fact they do.

  6. Stephen Avatar
    Stephen

    The problem I continue to have with this is that Franken’s use of “fair and balanced” in the title gave no indication that it was a play on or a shot at Fox News’ slogan. It’s only obvious if you already know that Franken is a blowhard. “A fair and balanced look at (a political ideology)” certainly isn’t beyond belief for a report or a book by FNC. Without Franken either using scare quotes or parodying the slogan, I don’t think the lawsuit is as frivolous as people want to believe.

  7. Harry Avatar
    Harry

    Stephen — interesting point, and if the rest of the title were a little less hyperbolic I think Fox might have the makings of an actual argument on that basis.
    Unfortunately, *everyone* knows Franken is a blowhard, including his allies. Bummer.

  8. Shag from Brookline Avatar
    Shag from Brookline

    Were the comments in Fox’s complaint about Franken fair and balanced? I realize that Fox’s attorneys, not Fox (presumably), chose the characterizations of Franken. Perhaps Fox does not require its attorneys to be fair and balanced (assuming that attorneys can so be). Keep in mind that Franken used fair and balanced in a sentence, which differs from the way Fox presents these words. Truth is generally a defense to libel. Franken’s context would seem to question the truth of these hallowed words as used by Fox. Just maybe the trial judge, if the case goes to trial, will permit the defense to raise the accuracy of Fox’s use of fair and balanced. If the judge does not enjoin Franken now, who thinks that the case will actually go to trial? For Franken this would be a case of just enrichment.

  9. Ross Judson Avatar
    Ross Judson

    I was listening to O’Reilly today at lunch. I paraphrase, but at one point he said: If you do this kind of thing, if you write a book, if you fill it with lies, you better have deep pockets. We’re going to come after you.
    In a nutshell, he just flat out admitted that they don’t care if they have a case or not. Say something they don’t like, and you better have the deep pockets to deal with the lawsuit that’s coming.
    Fox should be forced to pay costs.

  10. Malloy Avatar
    Malloy

    Ross —
    And O’Reilly thereby revealed the real purpose of this lawsuit in the eyes of him and Rupert Murdoch: to make Franken and his publisher spend money defending themselves. Fox doesn’t have a prayer of winning, and they know it. The complaint they filed isn’t the basis for a claim and should be dismissed on a motion for summary judgment; it is a public relations screed. This is an effort by Murdoch, in particular, to silence a comedian and satirist who irritates him. Fox, Murdoch and O’Reilly can’t do anything about this book, but they want the next author and publisher to think twice before saying anything in public that might annoy them. If Franken forms a legal defense fund, sign me up. I’ll certainly buy the book now.
    Can you imagine, in the United States of America, a NEWS organization suing to enjoin the publication of a book? Murdoch isn’t an American and I for one wish he would go bully other countries’ people.

  11. RJGatorEsq Avatar
    RJGatorEsq

    Ross says (and Malloy agrees), “Say something they don’t like, and you better have the deep pockets to deal with the lawsuit that’s coming.”
    Ross assumes that the “deep pockets” comment means “You had better be able to afford the legal fees you’re going to incur” in a frivolous lawsuit.
    In fact, “deep pockets” usually refers to the ability to satisfy a judgment. I.e., what O’Reilly was apparently actually saying was, “Libel us and you better have the deep pockets to satisfy the judgment we’re going to get.”
    Ross also says, I”n a nutshell, he just flat out admitted that they don’t care if they have a case or not.”
    Ross’s comment is so dumb as to be beyond belief. Read much, Ross? As I said above, what O’Reilly was apparently actually saying was, “Libel us and you better have the deep pockets to satisfy the judgment we’re going to get.” That is about as far as you can get from saying “We don’t have a case and we know it.”
    But hey, Ross and Malloy, NEVER let facts get in the way of a good, ignorant rant.

  12. Marc Avatar
    Marc

    I am the unnamed trademark attorney whose quote started this string. I don’t take sides between the politics of Fox and Franken. Unlike other commentators, including posters here, I look at the lawsuit from a legal rather than political viewpoint. I’m new here and it seems that a popular tactic is to cast aspersions and insults at other posters rather than advancing the merits of one’s own arguments. I won’t play that game, although that will undoubtedly subject me to more playground tactics. Oh well.
    I’ve practiced trademark law for ten years and have filed or defended many dozens of trademark lawsuits and taken two to trial by jury. I teach several continuing legal education courses each year on trademark law. I’m not omniscient. But I won’t pretend to know more than I really know.
    A mark can be lost through a lack of policing. Well known examples are escalator and cellophane. Note that these were coined terms entitled ab initio to a high degree of protection. In these cases, the marks became generic for the goods because the mark owners failed to police use by third parties.
    What is important in policing is preventing infringing use. “Policing non-infringing use” is a non-sequitur. The notion expressed here, that Fox is somehow obligated to go after Franken, starts from the premise that Franken is liable for infringement. “Policing” does not stand as an independent justification for Fox’s suit because its premise is Franken’s liability. Of course, there is a difference of opinion as to Franken’s liability. I’ve yet to come across a cogent, informed, non-political, and legally grounded argument argument for liability, however.
    As for the narrow definition of “deep pockets,” I can only assume that the author is unfamiliar with the costs of trademark litigation as well as the limited availability of damages. Relief is typically equitable in nature. Whatever meaning “deep pockets” may have in the fields of personal injury or medical malpractice law, I can assure you that “deep pockets” will be required to defend against this suit, should Fox pursue it, even in the absence of a monetary award.
    I stand by my view that Fox’s suit lacks merit on its face. Franken’s right to refer to his own book as a “fair and balanced look at the right” is well established in case law. Before anyone reacts by name calling, remember that my point of view is legal, not political. Do some legal research before responding. You might start with the leading legal treatise on trademark law, “McCarthy on Trademarks and Unfair Competition.” Read section 11:45 titled “use of term in its primary descriptive sense.” You will find a quote there from the same court hearing Fox’s suit:
    When the plaintiff chooses a mark with descriptive qualities, the fair use doctrine recognizes that

  13. Jeff Jarvis Avatar
    Jeff Jarvis

    Marc:
    Thank you for leaving your post. I found it illuminating and that’s why I quoted it out here on the front page.
    Everybody has an agenda and comments (like blogs) reflect that agenda rather openly; please don’t let that disturb you.
    The legal perspective in this case particularly is valuable.
    And I want credit for not making one lawyer joke!
    -jeff

  14. RJGatorEsq Avatar
    RJGatorEsq

    Marc says, “As for the narrow definition of “deep pockets,” I can only assume that the author is unfamiliar with the costs of trademark litigation as well as the limited availability of damages.”
    Marc, two tips: (i) read the quote that gave rise to my definition of “deep pockets”; and (ii) keep things in that context.
    O’Reilly said, “If you do this kind of thing, if you write a book, if you fill it with lies, you better have deep pockets.” See the context? O’Reilly and the rest of us are addressing tort damages for libel, not damages for trademark infringement.
    In any event, with respect to monetary damages for trademark infringement, the Lanham Act, the federal trademark act, provides that when the trademark owner establishes that one has infringed on a registered trademark, the trademark owner is entitled to recover: (i) the infringer

  15. Marc Avatar
    Marc

    Mr. Gator,
    It is true that the Lanham Act allows for an award of damages, but it does not require it. As a matter of practice, such remedies are not routinely awarded even where there is liability. That is the difference between legal theory and legal practice. Spend a few years litigating trademark cases and then get back to me.
    Liability comes before damages and you haven’t contested the flaw in Fox’s ability to enforce its laudatory mark “fair & balanced.” Hopefully, you will do some real legal research before you continue to champion the merits of Fox’s trademark infringement and dilution claims. (I don’t address Fox’s unfair competition claim because it, as well as the relevent case law, is much less precise than the claims and law of infringement and dilution.)
    Here are some other cases you ought to consider:
    Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F.3d 1055(7th Cir. 1995)(The fair use issue is determined by looking at the descriptiveness of the accused designation, not at the descriptiveness of plaintiff’s trademark. The question is not whether

  16. RJGatorEsq Avatar
    RJGatorEsq

    Marc says, “As I’ve said before, my perspective is legal, not political. Your argumentativeness is grounded in your political perspective.”
    Marc, you attempt to advance an argument that is directly contrary to the Lanham Act cited above. Sorry if that makes it a bit tough to believe your claim that you are apolitical.
    With respect to my “political perspective” and the fact that I used to post on Lucianne.com, I did. That’s half the story. The other half is, Lucianne.com banned me for being too liberal. They don’t like you much there unless you are a racist, homophobe, reactionary, and all-around hater. They especially don’t like attorneys.
    Marc, you have repeatedly taken quotes out of context and twisted them (e.g., your “deep pockets” argument). You have flatly misstated the law (e.g., your argument that the Lanham Act does not provide for monetary damages). You have engaged in pointless ad hominem attacks (e.g., the Lucianne nonsense you posted). You throw around claims that Fox’s suit is “frivolous”, apparently confusing “frivolous” with “a suit that will not prevail” (or then again, it might–I am pretty sure that Fox has trademark counsel who know what the Lanham Act says, and thus are at least a TAD more up-to-speed on the law than you seem to be). So, with all due respect, I’m not buying much that you have to say.
    Cheers.

  17. Marc Avatar
    Marc

    Mr. Gator,
    I’m not trying to sell you anything because your political orthodoxy prevents you from engaging in clear legal argument. I invited you to make a legal argument because I am secure in my views but open to learning of contrary legal authority. Your non-response: “I am pretty sure that Fox has trademark counsel who know what the Lanham Act says, and thus are at least a TAD more up-to-speed on the law than you seem to be.”
    Your faith in Fox is hardly a legal argument. Its more of a political stance or religious belief.
    The court ruled today on Fox’s request for injunctive relief. Let’s see what the court thought of Fox’s claims. Perhaps Fox’s attorneys have left me in the legal dust, as you suggest.
    U.S. District Judge Denny Chin said Fox’s claim was “without merit, both factually and legally.” http://www.foxnews.com/story/0,2933,95484,00.html
    What part of “without merit” do you not understand? I can’t wait to read how you spin this.
    Marc