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August 15, 2003

Al Franken is a big fat trademark infringer

Al Franken's book

This is getting too good not to comment on. The liberal weblogs like Eschaton and Mark A. R. Kleiman are awash in snotty remarks about the Fox News trademark infringement lawsuit againt Penguin Books and the 'humorist' Al Franken. Reading a copy of the complaint filed by Fox, we find that Penguin/Franken used the trademark "Fair and Balanced" without permission along with other visual elements associated with Fox News on Al Franken's new unreleased book "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right". I have some experience with trademark issues and it seems to me that Fox has a good basis for a lawsuit. Penguin has acknowledged this fact by saying that their defense is going to be based on the first amendment. Keep in mind that since Fox has asked for monetary damages they are probably hoping that this is a #1 best seller so they can be awarded most of the profits Penguin makes as damages. I believe that reality will set in at Penguin and that there will be settlement and that Penguin will change their book cover.

Most trademark lawsuits are based on the likelihood of confusion standard. This is not the strongest element in Fox's case since the cover has elements of parody in it. Parody is an acceptable defense. Whether it is in this case remains to be seen. The strongest part of Fox's trademark infringement suit is the trademark dilution claim. While Franken's use of Fair and Balanced may or may not cause confusion among consumers, Franken's use of the trademark may be diluting Fox's mark by either through blurring or tarnishing it. Franken may be casting the Fair and Balanced trademark in an unflattering light by associating it with inferior goods, i.e., Al Franken. Blurring occurs when the mark is associated with dissimilar goods. By associating the Fair and Balanced trademark, which Fox uses to identify its "entertainment services in the nature of production and distribution of television news programs", with a book Franken may be blurring what services Fox's trademark is used to represent. There is an excellent source for learning more about trademark law here.

Here is a sampling of some of the comments about this matter from other blogs. They are hilarious.

"The term "fair and balanced" was in use in the English language long before FOX decided to use it as company slogan... It's just like the term "safe and sound" or "night and day" or "salt and pepper". The court will not find in favor of FOX because FOX cannot suddenly claim a generic term for their exclusive use. That would put a hell of crip on marketing world as we know it. "

"If beating the Fox ****wads in court is part of their grand strategy, I say: Let's walk right into that trap and give them what they want!" **** edited.

"They will lose, they will look like dopes, No. They will lose, and they will look like martyrs at the hands of a vengeful liberal judiciary, which only increases their credibility with their target market. The loss in court is part of the strategy. It's designed in." "That [t]rademark, like copyright, has now become a general purpose device for private parties to use the state to suppress speech they do not like."

"I hope that Franken's attorneys know they need to knock this one out of the park. No expecting the court to see their side 'cause it's the only one that makes sense. If Fox is going to bring in a dozen expert witnesses for their side, Franken better bring in two dozen. The case is too important to allow for any half-measures on Franken's part."

"So can I win a suit with the Government over the use of "... with liberty and justice for all." Aren't they misrepresenting things? Shouldn't that last part be "some" not "all"? Can I sue them to change the Pledge of Allegiance" and win?"

"the unfait and unbalanced shoudl hopefully get a comupance- Fair and balanced is not a copyright trademark - how can it be - heck it is not like Kleenex after all and of course it is a lie to boot- I think they should be called the big lie network and they should have one of their star reporters testify - that is the oh so upright and truthful Oliver North".

"Faux news is looking more and more stupid over the Al Franken law suit. This fair and balanced yuk yuk suit is biting them in the butt. I can't say I'm sorry when they have touted frivolous lawsuits in their comments saying it is because of us liberals. Ha only the truly stupid stick their foot in their mouth up to their hips. The newspapers and real news sources are laughing at them and Al Franken is laughing all the way to the bank. They have just given him the best publicity that money can't buy."

- posted by Mad Jayhawk and Seven @ 8/15/2003 10:27:00 AM    |

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