** jeevmon ** , a comedian could kill McDonalds over the size of their hamburgers in a monologe, even characterizing them as smaller than they are a la Leno or Letterman, because they are using comedic license. But flagrant smearing of their image/trademark in a non-comedic setting is entirely different, as evidenced and opined by FOX’s lawyers.
So, before you beat your chest and declare others wrong, I suggest you consider the fact that some high power lawyers don’t exactly agree with you, chump.
You clearly have no knowledge of the time money and effort that goes into building a brand, a trademark and an image, because if you had any clue, you’d clearly see FOX’s point.
Brands and images drive what you buy everyday, and a company that lets anyone hurt the brand image while doing it unscathed is foolish.
Franken won’t go unscathed and FOX will protect the brand image. They will do so because good business people do just this all the time.
Incidentally, I would never have caught the connection between Franken’s book and Fox news if you all hadn’t pointed it out to me. Fox is overestimating their brand recognition, IMO. At any rate, Franken’s usage is clearly protected as satire, is not factually inaccurate, and does not infiringe on the Fox trademark. Fox is shooting itself in the foot by pursuing this lawsuit. It has no merit, and is only going to serve to drive up sales of Franken’s book, wether the title is changed or not.
“Franken is neither a journalist nor a television news personality,” according to the complaint. “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.”
Hm. You know, you could say about the same thing about Rush Limbaugh.
This is not a slander/libel suit, but one over trademark infringement. My undrerstanding is that for a trademark to be infringed there must be some possible confusion over the use of the trademark. Given that, your statement that “The title is not confusing - which supports part of Fox’s position in the suit” baffles me.
Finally there’s this:
To argue that just because a lawsuit has been filed then it must have substance is not very convincing. It’s not hard to get lawyers to file suits. And you could have left out the “chump” part entirely.
That make you feel better “chump”? Give you a nice woody? I said you were wrong, but I didn’t attack your credentials, “chump”. I refuted your point with a counterpoint. You decide to respond by smearing my credentials, not taking into account the possibility that I might, oh, I don’t know, actually practice trademark law for a living for one of the leading trademark firms in the country and, oh, I don’t know, represent the owners of some of the best known brands in the world. (into which category “Fair and Balanced” does NOT fall). So, “chump”, I am talking from a position of knowledge AND experience.
I am fully aware, “chump”, of the time and investment that goes into building a brand. I am also keenly aware of the limits of the rights of a brand owner. Were I advising Fox in this situation, I would tell them to let this one go for a number of reasons, legal and business. Legal would include that the actual likelihood of confusion case is quite weak. The use of “fair and balanced” in this context could be readily defended as fair use (i.e. a descriptive use of “fair and balanced” in describing the analysis of conservatives) or as parody, the likelihood of getting decent evidence of actual confusion is pretty slim, the mark is most likely not famous (certainly as compared to the “Fox News” mark itself or “We Report. You Decide.” marks), and the likelihood of recovering any money, at the end of the day, is negligible. Put bluntly, the use of “fair and balanced” is not source identifying. If the book were titled “Fair and Balanced: The True History of the American Right,” I’d say that Fox maybe had a stronger case. But it isn’t and they don’t. Heck, Franken could have published a book with a title that actually used the “Fox News” mark (which probably is famous), like “The Unbiased Truth About Fox News” and probably still could get away with it because he is using the “Fox News” mark descriptively to describe the contents of the book (or the perceived contents of the book, whichever you prefer). A trademark does not free a company from criticism, whether comedic or otherwise.
Business reasons to let this one go would include giving free publicity to “the enemy,” and the fact that the publisher of Franken’s book is someone who is financially capable of defending a lawsuit, and therefore is not going to be intimidated simply because a complaint has been filed. Thus the costs of pursuing litigation greatly outweigh the benefits.
I am also aware that merely alleging something in a complaint doesn’t make it true. So just because some “high powered lawyers” say that Fox’s brand and reputation are in imminent danger doesn’t make it true. Any more than my calling you an abrasive sack of [deleted] whose ancestors must have been [deleted] to produce so [deleted] a specimen of humanity as yourself.
Same here, Simon… I hadn’t even known Franken had a new book coming out until I read this thread. Nice job Fox! Way to preserve that branding! :rolleyes:
Now, even if their suit is successful (doubtful), more people will know about the original title than would have likely known about it otherwise.
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.
It seems Fox is also playing in an area that are the peeve of some judges, with the over the top filings clearly made just as much for PR as litigation. Admitedly, most filings are a bit outrageaous (I used to summarize shotgun-approach-type lawsuits for a major auto manufacturer all day long, some claims are just plain laughable) but I never read one that came that close to slander. Between these two buttheads in a shit fight, I’m not that interested. I am interested in seeing if Fox gets a little judicail reeming for the filing.
