Fox sues Franken over "fair and balanced"

I'm late to the party so you probably already know this, but Fox News Channel has sued Al Franken for using the phrase "Fair and Balanced" in his new book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.

What's funny about this whole escapade is that Fox giving Franken more free publicity than any publisher could ever hope to buy, even after accounting for legal fees.

So what does the law say?

In order to serve as a trademark, a mark must be distinctive -- that is, it must be capable of identifying the source of a particular good. In determining whether a mark is distinctive, the courts group marks into four categories, based on the relationship between the mark and the underlying product: (1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic. Because the marks in each of these categories vary with respect to their distinctiveness, the requirements for, and degree of, legal protection afforded a particular trademark will depend upon which category it falls within [...]

The term "fair and balanced" is obviously a descriptive term, so let's jump ahead to that section:

A descriptive mark is a mark that directly describes, rather than suggests, a characteristic or quality of the underlying product (e.g. its color, odor, function, dimensions, or ingredients). For example, "Holiday Inn," "All Bran," and "Vision Center" all describe some aspect of the underlying product or service (respectively, hotel rooms, breakfast cereal, optical services). They tell us something about the product. Unlike arbitrary or suggestive marks, descriptive marks are not inherently distinctive and are protected only if they have acquired "secondary meaning." Descriptive marks must clear this additional hurdle because they are terms that are useful for describing the underlying product, and giving a particular manufacturer the exclusive right to use the term could confer an unfair advantage.

So for Fox to prevail, they will have to argue that the term "fair and balanced" has acquired "secondary meaning":

A descriptive mark acquires secondary meaning when the consuming public primarily associates that mark with a particular producer, rather than the underlying product. Thus, for example, the term "Holiday Inn" has acquired secondary meaning because the consuming public associates that term with a particular provider of hotel services, and not with hotel services in general. The public need not be able to identify the specific producer; only that the product or service comes from a single producer. When trying to determine whether a given term has acquired secondary meaning, courts will often look to the following factors: (1) the amount and manner of advertising; (2) the volume of sales; (3) the length and manner of the term's use; (4) results of consumer surveys.

In other words, the term "fair and balanced" must be unambiguously associated with Fox News Channel in the mind of the public. Can FNC reach this hurdle? No way. Not even close. I would love to see that consumer survey showing people associating "fair and balanced" only with Fox (and the law is very clear in requiring these surveys).

And that's not even getting into fair use provisions of intellectual property law.

(Atrios and Drudge have more. Looking at snippets of the lawsuit over at Drudge, it looks as though it was written by 12-year-olds rather than adult lawyers. Like the Bush Administration, it's amazing what can happen when ideology trumps reality.)

Posted August 12, 2003 08:33 AM