Is it possible for Fox to trademark a phrase that doesn’t even apply to them? 
Cool as this is, this only beats TSR’s (old producers of Dungeons and Dragons) trademarking of the term “Nazi” by virtue of being true.
Daniel
“And in other news” – what would I have to do to trademark that?
- Use the phrase in commerce, i.e. to sell a product or promote a service;
- File a trademark application (cost $350, more if I do it for you)
- Argue that the phrase “And in other news” has secondary meaning, i.e. serves only to highlight the connection between goods/services and the provider of the goods/services (one might become blue in the face at this point)
- If applicable, argue with everyone that complains of your use of the phrase as an exclusive trademark (imagine GD thread on the morality of homosexuality)
My own, unresearched, off-the-cuff opinion is that Franken wins and that Fox is spending its own money to promote Franken’s book for him.
I liked the first half of Franken’s “Rush Limbaugh is a Big Fat Idiot” but couldn’t bring myself to finish it.
cj
His book is up to Number 20 on the Amazon sales ranking. Not too bad! Thanks Fox, indeed.
This area of the law is how I make my bread and butter, and I just had to laugh when I read about this suit. Fox is just being pissy.
The touchstone for any trademark infringement claim is likelihood of confusion. And I just don’t see that here. If Franken had called his book “Fair and Balanced: The Myth of Conservative Objectivity” or something similar, Fox might, just might have a marginal case. But the way the title is phrased, I just can’t see this going anywhere.
I believe you transposed “Franken” and “O’Reilly” in your second sentance, there.
Let’s hope they don’t catch you using it in a thread title. 
Fox may need to hire a few more lawyers as Fair and Balanced is spreading like wildfire in the Blogosphere.
Posted this in the Pit thread, but it applies here as well:
I hate to rain on the parade, but there’s a pretty good rationale for this lawsuit even if Fox doesn’t expect to win – which they probably don’t.
Trademarks, unlike copyrights, must be vigorously enforced or else they can be lost. That means that the safest path for a company to take is to challenge every single use of the trademark. What Fox wants to avoid is some other person using the trademarked phrase and, when Fox challenges that use, claiming that the trademark is no longer valid because Fox failed to enforce it against others.
So while yes, common sense would say “let this one go,” unfortunately common sense is not always part of US trademark law. In letting this one go, Fox might well be running a real risk of losing their trademark altogether.
Dewey,
While I’ll agree with the logic of vigorously protecting one’s trademark, couldn’t Fox have done a better P. R. job? Why did they feel the need to attack Franken openly? I agree with others - it’ll boost sales of the book for Franken (probably way beyond it’s merit) and it makes Fox look petty (and humorless).
Now, even if Franken loses (which others here contend isn’t likely), the book will still sell well based on the noteriety that this suit has generated.
On the other hand, Rupert Murdoch - being the media mogul that he is - probably doesn’t mind the attention that this story is generating. I guess tha adage that no press is worse than bad press (from Murdoch’s pespective for Fox) might be true in this case.
I heard Franken speak a few months ago, and he said he was going to call one chapter “The O’Reilly Fucker.” Don’t know if he did, but I’m sure he talks about O’Reilly at some length.
I’m not sure I get your drift. Fox didn’t call a press conference on the suit or anything – they just filed it. And lawsuit filings are public records – you can’t file a suit without doing so “openly.” There’s simply no way to do this in secret. Fox has a choice between avoiding negative PR and defending its trademark from future attack; it cannot do both simultaneously. The decision to pursue the latter course is a defensible business option, even if they think their specific case against Franken is on the weak side.
As I understand from some conversations with a trademark attorney friend, you can’t trademark a phrase that is descriptive of the product. So “fair and balanced” is only acceptable as a trademark if it does not describe the product - i.e., as long as their reporting is not fair and balanced. (any attorneys out there, feel free to correct me if I’m misunderstanding something.)
So tempting … must be strong … must resist …
*Originally posted by Dewey Cheatem Undhow *
Dewey,
check here for the news - the relevant section is below:
In its court papers, Fox described the 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 conservative host Bill O’Reilly (search) at an April press correspondents dinner. The lawsuit also says that Franken has been described as “increasingly unfunny.”
True, Fox didn’t call a press conference on the suit - but they openly attacked Franken within the suit. Why would they do that knowing full well that the suit was open to the public?
I understand the suit from a business standpoint - but surely someone at Fox thought about trying to minimize the publicity from this lawsuit, didn’t they? It’s one thing to file a lawsuit against someone to protect your trademark. It’s another to file that lawsuit and on top of it personally attack the party you are suing within the suit itself? IANAL, so I don’t know if this is standard practice or not (make personal attacks against the party you are suing within the suit itself).
The above is what I was getting at from a negative PR standpoint - not the suit itself, but the manner in which it was filed (personal attacks against Franken within the suit).
If that’s true, then I guess they have a case…
(ElvisL1ves, does that ease the tension a little? :D)
**
Your joking right? Remember the last time O’Reilly squared off against Franken kicked his ass. O’Reilly should have done the same thing Rush Limbaugh did…run away with his tail between his legs. Neither of them is in the same league as Franken.
Faux News screwed up big time with this one…
I love that … You should trademark it before I steal it!!! 