Which would have been a quite adequate post a bit further up the page, rather than trying to lecture a lawyer (it accomplishes nothing and annoys the lawyer).
Dewey, of course, does point out what the legal rationale is. This is why, for instance, Disney will come down hard on a nursery school using unauthorized graphics of their characters in its decor. It’s still annoying and an opening for ridicule.
Of course, it all would be unnecessary if “common sense” were objectifiable enough to be made an actual part of the law – so if some miscreant later on tried to claim that “Fair and Balanced” was undefended, the Court could tell him, sorry, your case is different. But hey, Dewey, jeevmon, Sua, my brother in Baltimore, and others in that profession have to make mortgage payments too
Dewey, it makes sense to me that they’d file a pro forma lawsuit just to say, “See? We really do care about our trademark!”
However, the language in their suit sounds just an eensy bit over the top, wouldn’t you say, for it to be a pro forma suit?
Maybe their lawyers decided that as long as they had to file a suit against Franken, they may as well have fun with it. But damn, that suit has some harsh language in it!
Daniel raises an interesting point, but there is an answer as to why the complaint uses the language it does. Lawyers have an ethical obligation to stay away from filing lawsuits which they think have no merit. This ethical obligation can run headlong into the obligation to look out for a client’s interests in the case of trademarks, because as noted, passing on case one is unlikely to win may have ramifications for later cases down the road.
A lawyer can’t file a suit that says “we actually think this is OK, but we’re contesting it to protect us in subsquent cases.” That would be frivolous and open the lawyer up to sanctions. Thus, the lawyer has to plead every trademark case as though it was a serious threat to his client’s well-being.
Of course, the Fox lawyers might also have found it fun to bash Franken. The two aren’t mutually exclusive.
I don’t really see abandonment coming out of failing to challenge Franken here. It gets down to what a trademark is and what it does. And Franken’s use of “fair and balanced” in this context is not a trademark use, in that he is not using it to identify his product or to distinguish it from those of others. He is using it descriptively to identify what he claims are the contents of his book.
Cellophane, aspirin, etc. aren’t really analogous because those marks were highly distinctive to start with. Thus, failure to challenge generic uses of the mark has a greater impact. Put another way, there are very few descriptive or fair use ways to use highly distinctive marks like KODAK, EXXON, etc., but there are fair use ways to use less distinctive marks such as “PHILADELPHIA,” so the former case warrants more vigorous enforcement to prevent lapse of rights than the latter. As a somewhat extreme example, but not entirely dissimilar to what Fox is doing here, if Kraft had tried to sue the producers of the film “Philadelphia” for associating their cream cheese mark with homosexuality and AIDS (analogous to Fox’s claim that Franken’s use of “Fair and Balanced” associates their mark with someone who is a degenerate lout), the suit would have been laughed right out of court. Add to that the fact that courts don’t generally require you to go after everyone at once, and I really don’t see the failure to crack down on this being the death knell of Fox’s rights in “Fair and Balanced.”
Again, I think it would have been a different case if the book were actually called “Fair and Balanced,” but that’s not the case here.
What really points up Fox’s irrationality is that since they denigrate Franken as not being a respected journalist, they wind up making the argument that this is not serious, and therefore, parody, and thus fair use of their trademark (assuming they can trademark a common idiom).
And adding irony to irony: Franken’s book is all about using the over-the-top dirty trick playbook of the radical right against them as parody. And then Fox goes right ahead and seriously uses those tactics (irrevelantly calling Franken a drunk and parasite as character assassination in a trademark dispute).
That is probably correct. However, companies, being risk-averse, will often go ahead and pursue claims even in seemingly ridiculous settings because there is an outside chance that failing to do so might provide evidence for an abandonment defense in a subsequent case.
Fox in particular is notorious for zealous enforcement of its intellectual property rights, famously pursuing Simpsons websites and Quake mods based on Alien. I wouldn’t be surprised to learn their legal department is a bit overly paranoid about possible trademark abandonment issues given their history in other IP areas.
The point is, this isn’t necessarily a shot at Franken or his politics or the content of his book. It may well just be routine corporate trademark policing by a company that is more skittish about losing its IP rights than it is about bad publicity.
Oh, I’m sorry… I though that taking Franken’s approach would go over well here. I’ll stop calling anyone names, even though name-calling is pretty much the butter on his bread and his ticket to buying a chance at hosting the same type of programs he loathes.
Guys, the FOX lawsuit is a thing of beauty, because they return the name-calling which is his only ‘skill’…his only asset for an income, and we will get to see Franken hide under the blanket of ‘parody’, thereby reducing him permanently to a side show who can never be taken seriously.
He is trying to pursue a radio show…he is trying to be a serious political player for the left, and he will scurry under the blanket that labels him ‘just some comedy writer’ …one who is left to wither on the outskirts of serious political force.
What the hell are you talking about? Dude got his start on Saturday Night Live (where he received [url=http://www.alfrankenweb.com/bio.html]four emmies for his writing and one emmy for producing[/url), joined the cast of MadTV for awhile, writes books with titles like Rush Limbaugh is a Big Fat Idiot – how the sweet love of Jesus is it “hiding under the blanket of parody” for him to claim that his works are comedic? What the motherloving God makes you think he’s trying to be taken seriously?
You don’t think he’s funny. We got that. Hell, I think Carrot Top is about as funny as gangrene, but I don’t go denying him the label of comedian.
Never bothers me when a liberal fool hung up on name-calling and ideology is propped up by his supporters as their hero, especially when he is nothing more than a comic playing to be a serious force - which he can’t be when he has to hide behind his comic front.
Oh, and Dewey, it makes sense that they’d pursue the case vigorously if they were going to pursue it at all. But lemme ask something – is it normal in trademark-violation suits to refer to the defendant as a parasite, as deranged, as increasingly unfunny? Does such language really help a suit avoid being called frivolous?
It looks to me as if the motivation for the suit isn’t so much trademark protection as it is vindictiveness. And Lord knows I don’t put much stock in Drudge, but he claims that O’Reilly lobbied Fox to file the suit. If this is correct, it looks even more like a SLAPP, like Fox is trying to bully one of their most vociferous and successful critics into silence.
DanielW, he has recently been trying to move into a more serious role to oppose the popular right in the media, but is proving incapable. That’s the dish.
A word of warning: don’t use the phrase “Let’s get ready to rumble!” in your marketing campaign because you just may get a nice letter from an attorney (who spends his entire day looking for the phrase, I’m sure) telling you that it is trademarked, that you have violated the trademark, and that for a reasonable fee they will settle any claim they have against you for the unauthorized use of said trademarked phrase.
Lawyers are ruining this country.
Hey, anyone know where I can get the previous sentence trademarked?
On a side note, anyone know if Lisa Beamer was successful in getting the phrase “Let’s Roll!” trademarked?
Heh. While the inclusion of such language can certainly be called poor practice, this complaint would hardly be the first to include those kinds of harsh pejoratives aimed at the defendant.
At any rate, I’d like to read the whole complaint to put that language into context. Can’t seem to find it on Findlaw or The Smoking Gun, though.
What the hell are you talking about? Dude got his start on Saturday Night Live (where he received [url=http://www.alfrankenweb.com/bio.html]four emmies for his writing and one emmy for producing[/url), joined the cast of MadTV for awhile, writes books with titles like Rush Limbaugh is a Big Fat Idiot – how the sweet love of Jesus is it “hiding under the blanket of parody” for him to claim that his works are comedic? What the motherloving God makes you think he’s trying to be taken seriously?