When was the last time a comic took on political commentators in serious debate? Franken does.
He’s crossing over (well, not very well). Come out from under the rock.
Yeah, and Gallagher’s running for governor of California. Does that mean you’re going to start taking him seriously? Please… pull the other one.
Actually, go ahead and stay under your own rock. You seem quite comfy there.
I’m actually surprised Philster has the big brass ones to come back into this thread after the through beat-down jeevmon gave him on page one. And not even an apology for calling him a chump and lecturing him about his own career! That’s some mad chutzpah you got there, pal.
“Mad” being the key word there, Miller. Philster’s understanding of the tradition of satire is jaw-gapingly flimsy, exceeded in anorexic emaciation only by his understanding of trademark law.
Daniel
Serious? By calling his book “Lies and the lying liars who tell them”???
He’s a COMIC. That’s what he does. he’s been doing it for damn near 30 years. Yes, he some insights and puts them in. But that’s what comics do.
You should maybe cultivate a sense of humour. It’s changed a bit since The Three Stooges.
arrrggghhhh
HUMOR has changed a bit since…
ah, I suck.
I have tires that are “fair & balanced”…I guess I better hire a lawyer.
Rigth. We’re talking about someone who “covered” the '96 campaign with a fake satellite dish strapped to his head. Folks like O’Reilly (in all his grand self-importance) who take the bait end up * being the ones who grant him the status of ‘pundit’*, because they apparently feel it’s beneath them to stand on the same stage as a satirist/gadfly. If you expend a lot of effort to prove the other guy is not a serious competitor, you raise the issue that maybe he is a competitor of some sort.
In any case, being a “counterpart fo the popular right in the media” does not require you to be a serious journalist. Part of Rush Limbaugh’s great success is that he is first and foremost an entertainer/communicator, with a right-wing ideological message.
Not to single you out, since this is something I deal with pretty much every single day of my professional life, but “trademark” isn’t really a verb, no matter what Webster’s dictionary might say. (neither is “copyright”, but “patent” is for reasons which are well beyond the scope of this thread.) When people ask me how to “trademark” something, I always tell them to start using it to identify the source of their products and/or services and to distinguish those products/ services from those of others. When they look at me puzzled, I explain that registering a trademark confers a nice bundle of presumptions and legal benefits, but ultimately is not what confers rights. It’s use in commerce that creates rights.
The Todd M. Beamer Foundation has registered “Let’s Roll” as a trademark for charitable fundraising services. That doesn’t mean that those words are forever excised from the public domain, or that anyone who says “Let’s Roll” has to pay a royalty to the Foundation, any more than Pat Riley’s trademark registration of “Threepeat” requires ESPN to pay a royalty every time the word is used on “SportsCenter.” Whether a particular use is prohibited under the law depends on the circumstances and the risk of confusion. Ditto for “Let’s Get Ready To Rumble.”
And for “Fair and Balanced” I’m actually a little surprised that it got through the registration process given that the services covered are “entertainment services in the nature of television news programs.” (And may we all stop and marvel at the irony of Fox characterizing Franken as a comedian and frivolous commentator while trying to enforce a mark for “entertainment services.” Or Fox characterizing its services as “entertainment services” to begin with. )
But Fox may have done something dumb here, not just from a PR standpoint. “Fair and Balanced” is arguably descriptive of a characteristic of news programs. Whether it is actually descriptive of Fox’s news programs is, of course, open to debate, but “fair and balanced” does arguably describe characteristics that would be associated with news programs, just like “blue” or “sturdy” would describe characteristics of certain tangible objects. In fact, public comments by Fox spokespeople suggest that they chose this mark because they felt that “mainstream” news was unfair and unbalanced, and thought that “fair and balanced” was an accurate term for Fox’s programming. Fox’s registration for “Fair and Balanced” is not yet incontestable, and is not eligible for incontestability until at least December of this year. Incontestability forecloses the possibility of certain legal challenges to a registration, including a charge that the mark is merely descriptive.
One of the prerequisites for incontestability is that there not be a pending and undecided proceeding involving the registrant’s rights in the mark at the time the incontestability claim is made. If Franken or his publishers have smart lawyers (which I’m sure they do), they’ll definitely include a challenge to Fox’s rights, which challenge will be sure to be made before December and which forecloses the possibility of a declaration of incontestability during the pendency of the lawsuit. And raises the possibility (not trivial in this case) that Fox could lose its rights in the mark altogether.
Incidentally, I think Dewey Cheatem Undhow asked for a copy of the suit; although I just formatted my computer and haven’t reinstalled Acrobat Reader yet, I believe this is a PDF copy of the lawsuit.
AlFrankenWeb.com, a Fair and Balanced Fan Page, is acting as something of a clearinghouse of information on this lawsuit.
Daniel
jeevmon, is there a difference between “slogan mark” and “trademark?” For a mark like “fair and balanced” doesn’t the PTO bring more attention to the design, setting, or other aspects of a specific rendering of the words. That is, it isn’t just “fair and balanced,” but also has to be in a particular font, color, or with particular curlicues, or followed by an “!” or that sort of thing (in addition to determinations of likelihood of confusion)?
Hentor, there is no requirement that a slogan be stylized or otherwise enhanced in order to be entitled to protection. To be entitled to protection, the mark has to be inherently distinctive or have acquired distinctiveness. The fact that a mark may be a slogan (e.g. “The Real Thing”) as opposed to a brand name (e.g. “Coca-Cola”) may be relevant to how the mark is perceived and whether confusion is likely to arise, but the law doesn’t create hard and fast distinctions between “slogan marks” and “trademarks,” or require that either be stylized to be entitled to protection. (Stylization may be necessary for marks that are otherwise descriptive, however.)
For example, since it’s been raised already, let’s consider the phrase “Let’s Roll,” which has been registered by the Beamer Foundation for charitable fundraising services. “Let’s Roll”, though a common phrase, does not directly describe and is not the generic name of any product or service. It can therefore be used as a trademark and protected against confusingly similar uses, which is essentially what the Beamer Foundation is supposedly doing.
Now, if the Beamer Foundation finds out that someone is making t-shirts that say “Let’s Roll,” they might decide to sue for infringement. Whether they prevail depends on a lot of factors. The fact that the mark is a slogan, as opposed to a traditional brand name, might become important in determining what effect things like third party use have on the Foundation’s claim. If extensive third party use of “Let’s Roll” on t-shirts can be shown, it may undercut a claim by the Foundation that people seeing a “Let’s Roll” t-shirt are likely to be confused about the relationship between the shirt and the Foundation. I say “may” because it is not hard to see that other factors could weigh equally the other way in favor of the Foundation, such as the fact that our hapless vendor decided to combine “Let’s Roll” with iconography or language evocative of September 11.
By the by, Miller, I believe that Philster backhandedly apologized for something towards the end of Page 1, but it is not clear whether the apology was for trying to lecture me on trademark law or not. I’m not particularly losing sleep over it, since he seems to have gotten the message I was trying to send and is limiting his contributions to this thread to banal ad hominem attacks on Al Franken, rather than trying to fake greater knowledge or understanding of complex areas of the law than others on the Board.
Thanks for that. It’s an unintentionally funny read – I understand the legal reasons they include most of the text, but read without regard to those niceties the complaint is hi-freakin-larious.
For example: in several places the complaint essentially gives Fox News a nice sloppy blowjob, talking about what a paragon of news excellence that they are. That is understandable for legal reasons: one of their claims is that the misuse of the trademark hurts their hard-earned reputation as a premiere news source, so they have to pump up their rep for that claim to make sense. But the prose is pretty over the top – you’d think the Fox newsroom is populated by some kind of superhuman race of god-men.
Same deal on the snarky language about Franken. One of their claims is basically “hey, this Franken guy is a real loser, and the use of our trademark by such a huge loser will diminish the value of that mark.” That’s why the language about Franken being unstable and increasingly unfunny is present – they need to allege that Franken is indeed a major league loser for the claim to make sense. It’s presence is therefore understandable from a legal point of view. But it certainly does read as pretty nutty from a common sense point of view.
This wasn’t filed by Fox’s in-house counsel, by the way; the attorneys of record are with the law firm of Hartson & Hogan. I wonder if anyone over at Fox actually read the complaint (rather than just instructing outside counsel to draft and file the lawsuit). H&H, like most law firms, probably isn’t media-saavy – they aren’t used to their filings being read by laymen on the evening news. They may not have taken into account the PR implications of their complaint. I bet Fox starts requiring high-profile filings to be sent to their PR department for comment before they are actually filed.
Er…make that Hogan & Hartson.
Actually, since Fox’s whole modus operandi is critiquing and mocking the mainstream “liberal” media, what bad press they get out of this in places like CNN, the New York Times, etc. is just red meat for the lions. Those who are enamored of Fox News’ take on things are not as likely to think that this suit is silly. So I don’t know that the net PR effect is all that bad.
I’m kind of curious as to why they filed in state court rather than federal. Dewey, any thoughts, since you’re over there? Has the reputation of the SDNY fallen so far that no one wants to file there anymore?
Thanks, Jeevmon. You said:
I guess it is this that I was most curious about. “Fair and balanced” seems to me to be particularly descriptive or generic, but I couldn’t see how the title of Franken’s book used stylization that I associated with Fox. However, I suppose my interpretation of descriptive or generic in this matter is irrelevant.
Okay, that complaint is ridiculous.
They claim that Franken “…has attempted to fashion himself into a political commentator. [He] wrote and hosted a political television program called “Lateline”…guests included Falwell, Gephardt and Reich” - oh PLEASE! What a blatant attempt to mislead…or evidence of bad fact checking. “Lateline” was a * ** situation comedy…hello! ** * That’s like claiming Alan Alda participated in the Korean War as a surgeon! What assholes.
And then there’s “FNC has 80 million subscribers” - yeah, technically correct, perhaps, but I’d hardly charaacterize it that way. FNC is just one of many cable channels offered automatically in cable packages…it’s not like 80 million people * chose * Fox specifically. Puhleeze. Who are they writing this shit for?
Both “descriptive” and “generic” are terms of art in trademark law and mean different things. A mark is generic if it is the name of the product itself. Or, as a leading commentator has put it, if the name answers the question “what are you?” for the product, it is generic. So “cellophane”, “aspirin”, “beer”, and “book” are generic terms for those respective products. “Fair and balanced” is not generic because there is no such thing as a “fair and balanced.”
“Descriptive” terms are those that directly identify a characteristic or attribute of the product or service. For example, “transparent”, “brown”, “French.” “Fair and Balanced” arguably is descriptive of news programs. I certainly view it as such.
The same term can be different things dependent on the products in question. For example, “apple” is a generic term with respect to a piece of fruit, descriptive with respect to pastries, and a distinctive trademark for computers.
The importance of the distinction is this - generic terms are not entitled to protection as trademarks. Not ever. Sometimes, very rarely, a generic term can be reclaimed as a trademark, but it’s not easy. The manufacturer of Singer sewing machines famously accomplished the feat, but that’s the exception that proves the rule.
A descriptive term, however, may be entitled to trademark protection if it has acquired distinctiveness as a trademark. My favorite example of this is PHILADELPHIA for cream cheese. It is clearly descriptive of the origin of cream cheese, but has, through vigorous marketing and promotion, come to identify one particular brand of cream cheese.
Now, the Patent and Trademark Office is not supposed to allow registration of descriptive or generic terms. But sometimes they mess up and do allow it. I personally think that’s what happened here with “Fair and Balanced,” but I’m sure I could argue the point the other way if I really felt like it. Until the registration is declared incontestable, it is open to challenge on any grounds for which registration could have been refused initially, including genericness and descriptiveness.
If the registration is declared incontestable, it cannot be challenged on grounds of descriptiveness. The genericness challenge, however, remains available. Which is why I think that filing the case with a dubiously granted and contestable registration against an opponent capable of defending litigation is not necessarily the best approach.
The origins of Philadelphia Cream Cheese are only tenuously related to the city:
The lack of an actual connection to the city makes the claim to the trademark even stronger, though, doesn’t it?
I dunno. I’m a transactional attorney, not a litigator. The only time I’ve seen the inside of a coutroom was on the day I was sworn in to the bar.
My fact-free WAG is that perhaps the state courts are just friendlier to these types of claims. Or H&H has just had better luck with state judges. Or they like the jury pool better (The First Department only encompasses Manhattan and the Bronx, while the SDNY encompasses that plus the non-Long Island suburbs and immediate rural areas – Dutchess, Orange, Putnam, Rockland, Sullivan, & Westchester counties, specifically).
The state courts are definitely prettier – nice frescoes inside and the like, and a better exterior. In Wall Street, Charlie Sheen is shown walking to the state court building, even though he’d actually be tried in the federal court next door. But the state court building is more dramatic, with the long, wide steps leading up to a columned entrance. It’s the one you always see in movies and on TV.