Should FOX NEWS be allowed to trademark the term "Fair and Balanced?"

Well, I didnt' know when I started the thread that it had already been trademarked.

However, since then, the thread has clearly shifted onto whether or not they SHOULD be pressing charges against Franken in this case, so maybe a title change is necessary.

 

I heard Paul Newman is suing HUD (Department of Housing and Urban Development) for trademark infringement.

 

Well, I didnt' know when I started the thread that it had already been trademarked.

If you wish to see the trademark application, you can find it here. It was approved on December 22, 1998.

They also have a trademark on FAIR. BALANCED. UNAFRAID. that was registered May 6, 2003.

However, since then, the thread has clearly shifted onto whether or not they SHOULD be pressing charges against Franken in this case, so maybe a title change is necessary.

On the basis that they have the registered trademark, I say that they should sue Franken because they need to defend it. However, at the core of this case is whether they should be allowed to keep the trademark on "Fair and Balanced" in this case.

Right now, there are only two defenses against trademark infringement for Franken. The first is to show that it is a generic term, and so the trademark should be invalidated (at least in the political commentary/satire industry). The second is to demonstrate that his book is in a completely seperate field, and so the trademark does not apply in this case.

The only other option he has it to just give in now. There's nothing else he can do to successfully fight this.

Kimball Kinnison

 

This just in:
FOX News sues for right to be immature!

Associated Press:
(AP) Oral arguments have been scheduled for Friday for the Fox News Channel's lawsuit against humorist Al Franken.

U.S. District Judge Denny Chin set the date after a brief hearing Monday.

Last week, Fox sued the former "Saturday Night Live" performer and his publisher, the Penguin Group, to stop them from including "fair and balanced" in the title of his upcoming book.

The trademark infringement lawsuit seeks to force Penguin to rename "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. It also asks for unspecified damages.

Fox registered "Fair & Balanced" as a trademark in 1998.

Penguin, in court papers filed Monday, said the suit is "lacking in merit" and "antithetical to free expression concerns protected by the First Amendment."

So far, the legal action has only helped sell the book, which for the past week has been in the top 10 on Amazon.com. Penguin originally planned a print run of 250,000, but announced Monday that it had ordered an additional 40,000 copies.

"The extra printing is definitely a result of the interest generated from the lawsuit," said Penguin spokeswoman Lisa Johnson.

Penguin also moved up the publication date from Sept. 22 to the end of this week, meaning books will likely be on sale by the time of Friday's hearing.

Franken and Bill O'Reilly, the popular Fox news host, have publicly feuded and the lawsuit includes highly personal criticisms.

The news channel described Franken, an author and liberal commentator, as "neither a journalist nor a television news personality. He is not a well-respected voice in American politics; rather, he appears to be shrill and unstable. His views lack any serious depth or insight."

Fox alleged that Franken was "either intoxicated or deranged" when he attacked the network and O'Reilly at an April press correspondents dinner. The lawsuit also says that Franken has been described as "increasingly unfunny."

"As far as the personal attacks go," Franken responded last week, "when I read `intoxicated or deranged' and `shrill and unstable' in their complaint, I thought for a moment I was a Fox commentator.

"And by the way, a few months ago, I trademarked the word `funny.' So when Fox calls me `unfunny,' they're violating my trademark. I am seriously considering a countersuit."

Neither Franken nor O'Reilly attended Monday's hearing.

I'm sorry, but is that really "Fair and Balanced"?

Pfffft!!!

How do these yahoos actually get treated seriously?!?!

 

The article has a good point, that's what I'm saying Kimball.

Yes, in some distant ideological sense, they are protecting their trademark and investment.

But to me, it seems kind of like throwing a grenade in the corner of your house to kill a mouse. Sure, you want a mouse free house, but is it worth dropping a bomb in the corner of your room?

And did Franken really trademark FUNNY?

And should such a common term, fair and balanced, be specific enoug to deserve copyright?

 

I looked through the thread and didn't find it, but isn't Franken protected as his use of "Fair and Balanced" is parody? I almost certain it is. Particularly when it is not being used as a slogan but rather as three sequential words in a larger subtitle.

Fox News will lose this case pretty easily.

But I think it's time for a thread on intellectual property laws, which are just plain draconian. The ability to copyright an idea should be strictly limited. An idea should only be able to be copyrighted or trademarked as a precaution against its complete use in a non-artistic, non-satirical, business situation.

 

I think that the grenade analogy is fitting..

I mean nobody had even heard of his book, until the suit was made public. Overall, I think Fox is going to suffer more damage because of it.

But is it Fox's fault? If the nature of copylaw law says that they have to actively protect their copyright, should they not do so?

That is why Franken is not blameless here either. He know specifically what he was doing..Putting Fox between a rock and a hard place...

I mean just because an author uses it in a book, should FOX be forced to abandon a 5 year old copyright to avoid some embarassment?

 

But again, 1) it's parody, and 2) it's being used as three sequential words within a larger subtitle.

For example, if I wrote an anti-CocaCola book called "Why the Real Thing is Really Evil" or something, they may try to sue me for libel or whatever, but they can't sue for my use of "the Real Thing" even in blatant reference to them. Remove the political views in this debate and it's clear that Fox is in the wrong.

 

That is just it.. I think if you remove the political views, Fox is just using the established system. It didn't make the rules...

No matter what the court decides, neither party is "right" or "wrong" for exercising their rights..

EDIT: I'm not too sure about your "real thing" example either...

 

No, Fox News is wrong. This is the kind of absolutely frivolous lawsuit conservatives are always complaining about. Their lawyers must be aware that Franken's work is protected as satire, and the strategy here is probably one of intimidation, because otherwise it makes no sense and certainly brings more attention to the book.

THEY HAVE NO CASE. This is parody. And again, you can use the words "fair", "and", and "balance" in that sequence within a sentence or subtitle or whatever you want. You CANNOT have a slogan for a product that says "Fair and Balanced" or "We're Fair and Balanced" or something like that. This case should be thrown out, but if it's not, Al Franken will come out on top.

 

I am a firm believer in copyright laws, believe it or not (tm-Ripley's). My big issue is attempting to prevent someone from using these three words (part of the English language, mind you) in a saleable product.

If this is to be taken seriously, that means that no one can ever use "fair and balanced" together publicly ever. I disagree with that, and I think the courts will agree.

I'm willing to bet that Franken already went through the lawyers at Penguin to make sure it WASN'T trademark infringement before creating the title (book publishers tend to shy away from copyright/trademark issues). Because those words are used in a full sentence, and are not standing alone, I believe it is not trademark infringement.

I didn't know he was even coming out with a new book. I enjoy his starical humor, though, so I'll be buying it.

Thanks, FOX, for letting me know about it!!

 

I think it's out now! Penguin Books brought it out early, ahead of the frivolous lawsuit.

 

Here's why FOX's lawsuit is doomed:

The elements for a successful trademark infringement claim have been well established under both federal and state case law. In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff.

I don't think FOX can convince anyone that Al Franken is attempting to deceive people into thinking he is a part of FOX!

Also:
Eight factors for likelihood of confusion: To analyze whether a particular situation has developed the requisite "likelihood of confusion," courts have generally looked at the following eight factors:

1. the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);
2. the similarities of the goods and services involved (including an examination of the marketing channels for the goods);
3. the strength of the plaintiff's mark;
4. any evidence of actual confusion by consumers;
5. the intent of the defendant in adopting its mark;
6. the physical proximity of the goods in the retail marketplace;
7. the degree of care likely to be exercised by the consumer; and
8. the likelihood of expansion of the product lines.

The first five of these factors are examined in every trademark infringement action. The last three factors are the most common additional factors that are considered by a court.

Of these eight factors, the first two are arguable the most important. The similarity of the marks is clearly an important part in establishing likelihood of confusion, but it is far from determinative. It is possible for the same, identical mark to be used in the same geographic area without any trademark infringement occurring, as long as the goods or services of the parties are sufficiently dissimilar. As an example, a quick review of the Minneapolis phone book lists numerous companies operating under the name SPEEDY. The services offered by these companies are as follows:

• Car washing services;
• Locksmith services;
• Grocery retail services;
• Printing services;
• Plumbing services;
• Sign creation services; and
• Video rental services.

In one way, these companies are a good example that the same mark can exist on multiple goods and services as long as the goods and services are sufficiently difference. However, this may be a poor example since the SPEEDY mark may be too descriptive to function as a trademark without proof of secondary meaning (see BitLaw's discussion of the strength of marks for further information).

Source: BitLaw

 

I looked through the thread and didn't find it, but isn't Franken protected as his use of "Fair and Balanced" is parody? I almost certain it is. Particularly when it is not being used as a slogan but rather as three sequential words in a larger subtitle.

You are thinking of copyright laws, which have a "Fair Use" exemption for parody. Trademark is different and does not have such an exemption.

I am a firm believer in copyright laws, believe it or not (tm-Ripley's). My big issue is attempting to prevent someone from using these three words (part of the English language, mind you) in a saleable product.

That is not true. Trademark only prohibits the use of those words within the same market in order to identify a product or service, and in the same order. As I stated on the last page, Apple Computer and Apple Music both have a trademark on "Apple", but they are in different markets, so there is no conflict.

Kimball Kinnison

 

That is not true. Trademark only prohibits the use of those words within the same market in order to identify a product or service, and in the same order. As I stated on the last page, Apple Computer and Apple Music both have a trademark on "Apple", but they are in different markets, so there is no conflict.

Geez, KK, isn't that exactly what my last post--you know... that really long one with all the green--basically said? You're so eager to condemn me, you don't bother read what I write? Not very fair and balanced, my friend.

And last time I checked, a News agency and a political satirist are not in the same market. FOX News will lose the lawsuit.

 

Geez, KK, isn't that exactly what my last post--you know... that really long one with all the green--basically said? You're so eager to condemn me, you don't bother read what I write? Not very fair and balanced, my friend.[/i

I apologize. I had not finished reading all the way down. However, I was mostly trying to respond to the numerous attempts to describe this using copyright instead of trademark. Your previous post was only one of the several that was doing so, but I was trying to bring out that distinction.

And last time I checked, a News agency and a political satirist are not in the same market. FOX News will lose the lawsuit.

There is some dispute on that. Fox does publish some books, mostly by their political commentators. That could constitute enough similarity to uphold their trademark in this case. However, even then the worst they would face is a ruling showing that their trademark is not valid in political satire.

However, even if Fox loses this lawsuit, they still have preserved their trademark (unless it is blatently ruled as generic). This will set a precedent of their vigorous defense of it. That is the real reason that they have to bring this suit. (Although I will agree that they are handling it rather poorly, almost as bad as SCO is handling their lawsuit against IBM.)

Regarding what you posted, there is one key point: a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. You underlined that phrase. However, you then commented that Franken is not attempting to confuse people.

However, Fox doesn't have to show that he is trying to confuse people, only whether people might be confused. On the list you provided, Fox could build a pretty good case on #2, and possibly #1 as well (I haven't seen the book yet myself). For #4, they would only have to show that some consumers were confused by the mark. They could also build a pretty good case for saying that because the topic of it is the news media, the intent was to be similar to Fox's mark, giving them #5.

At this point, it really will be up to the judge (or jury) to decide, unless they settle somehow. However, Fox could build a case on several of the points you mentioned. (I'd still give them a 50/50 chance of pulling it off, depending on the specific judge.)

Kimball Kinnison

 

KK, McDonald's trademarked the word "Smile" a couple of years ago. If a book criticizing McDonald's contained the word "smile" in it, could they rightfully be sued as well?

I think it would depend on whether there is an insane archconservative judge presiding, or a clear-thinking one. There is "fair use" allowed in trademark issues, but it's foggier, apparently, than with copyright issues.

The question is, will people mistake a liberal commentator/comedian's book for something produced by a conservative (don't even start) news corporation?

 

KK, McDonald's trademarked the word "Smile" a couple of years ago. If a book criticizing McDonald's contained the word "smile" in it, could they rightfully be sued as well?

No, because they are not within the same market. However, if it were a book about the fast food industry and it was titled "Smile", there would be more of a case in McDonald's favor. In that case a lot more would depend.

As a similar example, McDonald's filed a trademark suit in Scotland against a restaurant owned and operated by the McDonald clan. In that case (and only for in Scotland), the hambuger chain lost out.

In IP cases, a lot depends on the details of the case. In this case, a lot comes down to how the judge defines what the relevant market is.

Kimball Kinnison

 

I've heard about McDonald's endless lawsuits against people with a surname beginning with "Mc". I find the ownership of culture and ideas to be pretty disturbing myself, and in the silly suits like the McD's one or this one with Fox, what's really happening is the limitation of expression, and not so much the protection of ideas.

This is even more of a problem with copyrighting (which I know more about), but this overextension of "defense of one's trademark" is crap. Only a news service using the trademark "Fair and Balanced" in my mind is ripe for a lawsuit.

 

apologize. I had not finished reading all the way down. However, I was mostly trying to respond to the numerous attempts to describe this using copyright instead of trademark. Your previous post was only one of the several that was doing so, but I was trying to bring out that distinction.

ahhh, gotcha. no prob.

 

For all I rail against FOX News, aka the FAKE News, I am very sad.

My new apartment's cable has CNN, CNBC, MSNBC, but NO Fox News! I LOVE FOX NEWS! I really do watch it all the time, I enjoy their conservative screwhead achors and their wildly right-wing slant! That they utter "fair and balanced" in every single sentence that contains FOX NEWS makes it even more precious.

Seriously, I am going to write to my cable company complaining that I don't get Fox News.

 

Wow!!! What's it like living in Hollywood??

 

It's over. Fox lost.

 

From FOX News (of all places):
U.S. District Judge Denny Chin said Fox's claim was "without merit, both factually and legally."

But I promised I wouldn't say "I told ya so".