Fox News claims a trademark on the phrase “fair and balanced.” Al Franken’s soon to be released book is called “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.” So naturally –since we are living in a dream world where Austrian body-builders, midget actors, and porn magnates are vying to be Governor of California– it stands to reason that Fox would sue Al Franken for trademark infringement. Just for putting the phrase “fair and balanced” in his book’s title.
If you don’t need fiscal and government experience of any kind to steward the world’s fifth largest economy, then why would you need a meritorious basis for suing a well-known humorist for trademark infringement? Marty Schwimmer, the trademark specialist at the Trademark Blog, is keeping mum on this one (and I can’t say I blame him). But Eugene Volokh calls it “an extremely weak case.” Glenn Reynolds, another respected law professor, goes farther, calling the lawsuit asinine.
The best response to the lawsuit, however, comes from Defendant Al Franken, who was in Italy when reached for comment.
“I normally prefer not to be out of the country on vacation when I’m sued. However, from everything I know about law regarding satire, I’m not worried,”
In its court papers, Fox described Franken as “neither a journalist nor a television news personality. He is not a well-respected voice in American politics; rather, he appears to be shrill and unstable. His views lack any serious depth or insight.” To which, Franken responds:
“As far as the personal attacks go, when I read `intoxicated or deranged’ and `shrill and unstable’ in their complaint, I thought for a moment I was a Fox commentator.”
“And by the way, a few months ago, I trademarked the word `funny.’ So when Fox calls me `unfunny,’ they’re violating my trademark. I am seriously considering a countersuit.”
By filing this suit it seems to me that Fox has accomplished only two things. First, they’ve given Franken’s book a major publicity boost. Second, they’ve set themselves up for a fight that they aren’t likely to win, and which they can’t easily settle without complete capitulation. The lawsuit seems amateurishly ill-conceived, unless their real goal is simply to garner publicity.
I confess I know nothing about marketing and publicity, but maybe Fox would be better off if they just registered their news show as a candidate for the California gubernatorial election.