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Archive for Tuesday, September 2, 2003

Fair ruling on Franken, Fox

September 2, 2003

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Common sense scored an unexpected but welcome victory last week in (of all places) a U.S. courtroom. After only 30 minutes of oral arguments, U.S. District Judge Denny Chin summarily tossed out the frivolous lawsuit that the Fox News Network filed against liberal satirist Al Franken.

Fox News was attempting to sue Franken over his inclusion of the phrase "fair and balanced" in his book titled "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right." Fox News holds a trademark on the phrase as it applies to news reporting, and they were trying to prevent Franken's book from being distributed on the grounds that he violated that trademark.

Judge Chin said the lawsuit was "wholly without merit, both factually and legally." Commenting further on the trademark itself, Chin said that it was "unlikely a valid trademark" and that it was "a weak one as trademarks go."

This was a silly case in so many respects. The very idea that anyone would attempt to claim a trademark on such a common phrase should have raised red flags when Fox was trying to procure it. This trademark should have never been issued, and as this case has demonstrated it is one that will be virtually impossible to enforce.

What's next? Will companies start trying to obtain trademarks for words like "quality" and "excellence"? There have to be some reasonable limits on what an individual or organization can claim exclusive rights to, and a common phrase such as "fair and balanced" should never have been considered a valid candidate for exclusivity.

Another inane aspect of the Fox complaint lay in their contention that the reading public would be confused by the title of Franken's book, thinking that somehow this was a product that Fox News officially endorsed. During Friday's hearing, Judge Chin wondered aloud whether Fox News was assuming that its viewers were less sophisticated than the people who would normally buy Franken's book. He seemed to think that the fact that the word "lies" was stamped across the face of Fox idol Bill O'Reilly on the book's cover would tip off most of the people who were sharp enough to actually read a book that this was parody and not an official Fox product.

Last week, Fox News officially dropped its lawsuit and wrapped the situation up in an appropriately mature fashion when a spokesman issued the following statement: "It's time to return Al Franken to the obscurity he's normally accustomed to."

Franken seemed to agree. He expressed disappointment that the suit had been dropped so quickly and said that he was hoping the story would hang around a while longer.

But he shouldn't be too greedy. His book is already sitting at the top of the best-seller list and his publisher has increased their initial shipment of 300,000 of his book to over half a million. Franken should send Fox News a dozen roses as a token of thanks for all the free publicity.

Whether or not Fox News really lives up to its tag line of "fair and balanced" could be debated endlessly, but if it ever tries to describe itself as "guardians of the First Amendment," the folks running that network should be locked up for their own protection.

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