Fair and Balanced…

Sheesh… I missed “Fair and Balanced Day” on Friday. This was, I gather, supposed to be a net-wide protest against FOX News’ lawsuit against Al Franken (I bet Rush Limbaugh is kicking himself for not doing that, but then again “Rush Limbaugh is a Big Fat Idiot”…) The whole thing is based on the title Al’s latest book “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right” in that it contains a slogan which FOX News feels they have sole use of in the English language: Fair and Balanced. Of course this is from a news organization that is owned by Rupert Murdoch, who is apparently known for journalistic integrity (just look at the Sun, and the famous Page 3 Girls, if you don’t believe me…)

Apparently Fox News trademarked the slogan when they launched. They are afraid that people would be confused as to the books relation with their organization. I feel a word coming on… POPPYCOCK! I had no clue that FOX News even used the slogan. Every respectable news organization has purported to be “Fair and Balanced” but only FOX thought the need to trademark it (which points to a deep insecurity, in my opinion.) If this is the part of trademark law they are going into battle with, then they don’t deserve any trademarks. How is anyone going to confuse Franken’s book with FOX News? Do they think that their viewers are that stupid?

I’m going to cut and paste a section from Nolo’s website on Trademarks:

When can the owner of a trademark stop others from using it?

Whether the owner of a trademark can stop others from using it depends on such factors as:

whether the trademark is being used on competing goods or services (goods or services compete if the sale of one is likely to affect the sale of the other)

Well, I don’t think that the products are competing. One’s a book; the other is a news channel.

whether consumers would likely be confused by the dual use of the trademark, and

Again, I ask… Who’s going to be confused? I didn’t even know that FOX was using the slogan, and a FOX News viewer isn’t likely to get Franken confused with the Channel.

whether the trademark is being used in the same part of the country or is being used on related goods (goods that will likely be noticed by the same customers, even if they don’t compete with each other).

I can see this if Joe Fox started his own news channel, but not on a phrase that was used by others prior to it’s being trademarked.

In addition, under federal and state laws known as anti-dilution statutes, a trademark owner may go to court to prevent its mark from being used by someone else if the mark is famous and the other use would dilute the mark’s strength — that is, weaken its reputation for quality (called tarnishment) or render it common through overuse in different contexts (called weakening).

Well, one can argue that the trademark was not famous. Most people in the US (and even the world) know that “All the news that’s fit to print” is the NY Times. I don’t even read the Times, and I know it. Before this lawsuit, I doubt that anyone who hadn’t watched FOX News (or even those who do) would have known that that was their trademark (a quick jump to their site doesn’t even show this mark in use, instead it’s got “We report, you decide” for a moment before moving on to a promo.)

Anti-dilution statutes can apply even if there is no way customers would be likely to confuse the source of the goods or services with those sold by the owner of the famous mark. For instance, consumers would not think that Microsoft Bakery is associated with Microsoft, the software company, but Microsoft Bakery could still be forced to choose another name under federal and state anti-dilution laws.

Microsoft is a hard one to battle, as it’s a made up word. If I recall correctly, McDonald’s sued to get a restaurant in Scotland to change it’s name from McDonald’s. I believe that the fast food chain lost that one (I can’t find the article on it…) But this is also a slogan and not a name, so I do not think that anti-dilution would work in FOX’s favor.

As a general rule, to avoid dilution claims, it is necessary to stay away from all existing marks that have widespread and significant consumer recognition.

Exactly. FOX would have to prove that prior to the lawsuit that their trademark had widespread and significant consumer recognition. It’s not like people we’re saying that they’re going to go watch the “Fair and Balanced” channel, but people do tend to ask for a Band-Aid when asking for a self adhesive bandage (or elastoplast for you Brit’s.)

I think that FOX will lose this one big time, and not only will Franken win in court but he (and his co-defendant and publisher) will win in sales that would have not have been as high without the power of the “Any publicity is good publicity” theory.