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August 11, 2003

Fox News Network is a bunch of wusses
Posted by Teresa at 08:59 PM *

Fox News Network is suing Al Franken and the Penguin Group (and yes, Dave, it would be a great name for a rock band) in an attempt to keep them from using the phrase “fair and balanced” in the title of Franken’s forthcoming book.

Why? Because, FNN says, they registered “Fair & Balanced” as a trademark in 1995.

I’m sure this comes as a surprise to everyone who thought that (1.) “fair and balanced” was a common phrase in journalism (I remember my old high school journalism teacher writing it on the board), and who (2.) thought that FNN’s slogan was “We Report, You Decide” (universally rendered as “We Distort, You Deride”).

But no. They say it’s their registered trademark, and that they now own this common phrase. This is a maneuver on par with LucasFilms trying to trademark “galactic empire” (which would only have been appropriate if George Lucas were Edmond Hamilton’s secret love child). Nevertheless, today in Manhattan, FNN filed a trademark infringement lawsuit, seeking a court order that would force Penguin to retitle the book currently known as Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. They’re also asking for unspecified damages.

So how do they figure these damages? Like this:
Franken’s “intent is clear - to exploit Fox News’ trademark, confuse the public as to the origins of the book and, accordingly, boost sales of the book,” the suit said.
The news story inexplicably fails to note whether their lawyers managed to keep from giggling when they said that. In summary:
1. Fox News Network, which has a different and perfectly well known (if universally disrespected) trademark slogan, asserts that because, I don’t know, they got the court drunk or something back in 1995, they have sole use of the common journalistic phrase, “fair and balanced”.

2. Fox News Network thinks people automatically associate “fair and balanced” with “Fox News Network”.

3. Fox News Network thinks people so invariably associate “fair and balanced” with “Fox News Network” that they’ll believe a book with those words on the cover will be mistaken for a Fox News Network product, even though the book is by Al Franken (well-known author of Rush Limbaugh is a Big Fat Idiot), is about the shameless chronic mendacity of the far right, and is clearly identified as being published by Penguin, not FNN.

4. Fox News Network thinks Al Franken will sell more copies of his latest book if people think it was published under the auspices of Fox News Network.

5. FNN wants to change the title of a book a month before its pubdate. That right there is a flogging offense all by itself.
I can only think of three possible explanations for this filing. One is that it’s simple harassment, a shameless misuse of the court system. Another is that Fox News Network’s legal staff is so stupid that they have to be regularly reminded to breathe. The third is that they’re all secretly Al Franken fans, and are trying to drum up publicity for his new book.

Consider putting in an advance order for it, next time you’re in a bookstore.

Addendum: Mary Kay Kare and Mike Kozlowski have come up with a possible explanation for this splenetic and nonsensical lawsuit: Al Franken called Bill Reilly on his lies during a panel discussion at Book Expo America 2003. Thanks, Mary Kay; thanks, Mike.

(see also posts of 22 August 03, 23 August 03.)

Comments on Fox News Network is a bunch of wusses:
#1 ::: Robert L ::: (view all by) ::: August 12, 2003, 12:12 AM:

True, they may have to change the cover a month before pub date, but now they can put a big banner across it that says "THE BOOK FOX NEWS DOESN'T WANT YOU TO READ!" (See the old Gold medal edition of John D. MacDonald's The Damned with "I WISH I'D WRITTEN THIS BOOK --MICKEY SPILLANE on the cover for design to copy.)

#2 ::: Yonmei ::: (view all by) ::: August 12, 2003, 12:57 AM:

I checked this out on the USPTO website, and sure enough, Fox News registered "FAIR & BALANCED" as a service mark - the date of registration is December 22, 1998. (The attorney of record is Daphne Gronich, which I think is splendidly appropriate. Gronich!)

However. In order to defend a trademark or a service mark, the rule is that trademarks are inherently adjectival and must remain distinctive to retain their protected status. If a company trademarks a phrase in common use, such as "fair and balanced" and then tries to come after someone for using it, they have to prove that the someone was using their trademark, not the common-use phrase.

Before Fandom,Inc went bust, they tried twice to trademark the word "fandom", and sent C&D letters to a fan who had registered the domain name www.fandom.tv, on the grounds that they and only they had the right to use "fandom" in a top-level domain name. (This attack on fandom may have something to do with why Fandom went bust. Not good market strategy, you'd think...)

Anyone know what happened with the infamous Pillbury bake-off lawsuit? (Pillsbury claimed that software engineers had no right to use the term "bake-off" to describe their get-togethers testing new software against test network protocols to see if they work correctly.)

Anyway, Fox News have picked on the wrong people when they picked on the Penguin Group (at least, I trust they have): Penguin is a company with a notorious history of doing the right thing even at risk of ending up in court. (With regard to Lady Chatterley's Lover, to avoid the Crown prosecution of a bookseller, Penguin formally handed over half a dozen copies of LCL after pub date, thus making themselves liable to prosecution. In the UK, sellers, not publishers, are normally prosecuted for distributing "obscene literature".)

#3 ::: Lois Fundis ::: (view all by) ::: August 12, 2003, 01:56 AM:

The Franken book is now in my Amazon shopping cart. Thanks for the reminder!

Meanwhile, I'm not a lawyer, but:

Fox's trademarked phrase is "fair & balanced" with an ampersand instead of the word "and".

Franken's book's subtitle uses "fair and balanced" with the "and" spelled out.

It therefore appears to me, after a fair + balanced look at the two, that these are not the same phrase and Fox's case is without merit.

#4 ::: Jo Walton ::: (view all by) ::: August 12, 2003, 02:41 AM:

It's hard to believe anyone can be that stupid and still be able to find their mouth with a spoon. I mean with this sort of book, any publicity has to be good publicity. People have now heard of this book who wouldn't have normally -- I mean let's be specific here, I mean me.

As they're so clearly trying to tie the book up frivolously, I'd suggest Penguin change the cover to say "Balanced and Fair" instead, and add the screamer mentioned above but saying that Penguin are sorry that those losers Fox destroyed the scansion of the title, but here's the book they tried to stop you reading.

#5 ::: Mr Ripley ::: (view all by) ::: August 12, 2003, 02:53 AM:

Secret love child? George Lucas was the perfectly legitimate child of Ed Hamilton. Why would Leigh Brackett have agreed to write a sequel to a puerile space opera like SW unless she was the filmmaker's mom?

#6 ::: John M. Ford ::: (view all by) ::: August 12, 2003, 03:16 AM:

In one of the packaged adventures TSR did many years ago for the Indiana Jones RP Game, there were some cutout cardboard character figures on the wrapper, which were named on the base: we had Indiana Jones(tm), of course, and three trenchcoated goons labeled Nazi(tm). This is still well recalled by us old and decrepit dungeon-fogies.

I would have liked to see the trademark application. I would have liked to have been a fly on the wall when the clerk read it. I don't recall any infringement suits, but that was a gentler era.

And in a conversation t'other day about Roger Ailes, I referred to his outfit as "Fox Henhouses Ltd." Is it too late for me to file my application, understanding that I may run up against Warner Brothers, with F. Leghorn Esq. as principal complainant?

#7 ::: Jane Yolen ::: (view all by) ::: August 12, 2003, 03:20 AM:

I am with Jo here. Now that I have heard about the book (thanks Fox News) I want to read it.

This story will run and run. And I love it.

Do you thik I can get Fox News sue me for my next book?

Jane

#8 ::: Ray Radlein ::: (view all by) ::: August 12, 2003, 04:10 AM:

Do you thik I can get Fox News sue me for my next book?

Will it be titled The Right-Winged Queen, perhaps?

Or maybe Coulter and the Curse of Amazon.com?

#9 ::: Yonmei ::: (view all by) ::: August 12, 2003, 04:53 AM:

Nazi(tm). This is still well recalled by us old and decrepit dungeon-fogies. I would have liked to see the trademark application. I would have liked to have been a fly on the wall when the clerk read it.

It is perfectly legitimate to declare any word or symbol to be your trademark, and it then becomes your trademark by use. You do not need to make an application to legally trademark it, though these days you are best advised to do so, and certainly, anyone who wanted to trademark one word such as "Nazi" would pretty much have to do so.

However: according to the USPTO website, it never happened. There are twelve trademark applications on record that use the word Nazi, 3 alive (VICTIM OF NAZI PERSECUTION RESTITUTION TRUST, NAZI VICTIM COMPENSATION TRUSTS, VICTIMS OF NAZI PERSECUTION COMPENSATION TRUSTS) and 9 dead. ("Dead" means that the person who applied for the trademark gave up before the process was complete, and the application therefore lapsed. Six of the dead applications concern Nazi victim trusts: 2 are for a comic called Nazi Hunters: 1 is for something called FELLONZ, but the application doesn't go into much further detail. There is no record that anyone ever applied to trademark the single word "Nazi".

#10 ::: David Goldfarb ::: (view all by) ::: August 12, 2003, 04:59 AM:

Count me in as another who had not heard of the book until now, but may well purchase it.

#11 ::: John M. Ford ::: (view all by) ::: August 12, 2003, 05:12 AM:

There may not have been an actual application (see below), but the TSR adventure is not urban folklore -- I held a physical copy of it when it arrived at Compleat Strategist's 33rd Street store, and talked about it with the staff and other patrons -- a brief and pointed conversation, since there wasn't much to say beyond, "Wow, that's dumb." The speculation on watching the documents was, you know, speculation.

My best real guess is that someone in the TSR art bullpen was simply slapping (tm) dingbats on every proper name in sight, doubtless on the orders of a manager who had gotten some kind of memo from the studio and decided that nobody would fire him for overdoing it.

There was another licensed product -- I think it was the "Escape from the Death Star" boardgame (from a different company) -- that was briefly notorious for having "Tractor Beam(tm)" on the box copy. Again, there was probably never any paper filed; they were likely just wildly flinging the designation under the Designated Flinger Rule.

#12 ::: Xopher ::: (view all by) ::: August 12, 2003, 08:26 AM:

It's hard to believe anyone can be that stupid and still be able to find their mouth with a spoon.

There's a cable network in the US that keeps changing formats. They used to be called The Nashville Network, and they showed stuff like NasCar and country-music hoedowns. A couple of incarnations later, they decided to call themselves Spike TV, but they had to just call themselves The First Network For Men (by which they mean drunk, dissolute frat boys who have to cheat and buy term papers in order to graduate with a C- average, if their programming is anything to go by).

Why? Spike Lee sued them for stealing his name. Entertainment Weekly pubbed a hilarious cartoon showing Spike Jonze, a person wearing spiky hair, and a railroad spike all in jail. Not to mention the James Marsters character on Buffy.

The suit was dismissed IIRC; at any rate Spike went live yesterday. Mr. Lee, OTOH, has now demonstrated to the world that he is a total asshat. Stupidity, especially in the realm of litigation in the US courts, has no limits whatsoever.

#13 ::: John Farrell ::: (view all by) ::: August 12, 2003, 08:43 AM:

Nothing to add, except my appreciation for Al Franken (aka Stuart Smalley), whom I think was one of SNL's best writers and performers.

("I'm good enough, smart enough...and doggone it, people like me.")

#14 ::: Jon Hansen ::: (view all by) ::: August 12, 2003, 09:07 AM:

Minor correction: the Spike Lee vs. The Network Formerly Known As TNN court case wasn't dismissed. They settled out of court, details kept under wraps. I don't know if this means that they paid Lee off, agreed to program his movies on occasion, or agreed to hang his picture in the lobby with a brass plaque. But to my mind, the fact that a case that bizarre wasn't dimissed does more to encourage these sorts of, uh, questionable lawsuits than anything else.

#15 ::: C.E. Petit ::: (view all by) ::: August 12, 2003, 10:15 AM:

Actually, Fox made a much, much bigger error in not waiting until 23 September to file suit. On 23 September, the mark will have been registered for five years, giving it "incontestable" status. Since they filed suit before that date, however, Penguin gets to attack the basis for even registering "fair and balanced" (in whatever symbology; the difference between and ampersand and "and" means very little). Sure, that would mean that the book is on the shelves, but it is still close enough in the future that it would be appropriate diligence in defending the mark.

This is not the first time that Fox has screwed things up in the last few months. In May, the Supreme Court decided that Fox could not use trademark law to keep a video packager from reediting raw source video in which the copyright had been allowed to lapse, because trademark law cannot substitute for the copyright term in that manner.

#16 ::: jupiter ::: (view all by) ::: August 12, 2003, 10:34 AM:

According to this NYTimes article, FNN's filing seems to be, um... libelous. Or is this sort of language common in court papers?

"'Franken is neither a journalist nor a television news personality,' according to the complaint. '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.' ...
"The court papers refer to Mr. Franken, who is a former 'Saturday Night Live' writer and performer, as a 'parasite' who hopes to use Fox's reputation to confuse the public and boost sales of his book.
"Mr. Franken is also accused of verbally attacking Mr. O'Reilly and other Fox personalities on at least two occasions, and of being "either intoxicated or deranged" as he flew into a rage at a press correspondents' dinner in April 2003. Mr. Franken has not filed a response in court to the suit."

#17 ::: PiscusFiche ::: (view all by) ::: August 12, 2003, 11:15 AM:

There are rules and laws about how to use trademarks. First of all, you have to use it as an adjective modifier of some kind, not as other parts of speech, or out of context. Technically Fox's trademark usage should be Fair and Balanced (t) news, which cannot be confused with Al Franken's title at that point.

It also has to be marked with every printable usage, I believe. Anyway, here's a page which covers a few basics of trademarks.

I know Bayer lost the trademark on aspirin though because they didn't stop people from referring to it as aspirin instead of aspirin (t) medication.

I really don't think Fox news should have a case because fair and balanced really was a common term in the news media--I mean, hell, I remember discussing fair and balanced coverage back in eighth grade journalism classes.

#18 ::: PiscusFiche ::: (view all by) ::: August 12, 2003, 11:16 AM:

URL:

http://www.ladas.com/Trademarks/TraditionalRights/Tradit18.html

Sorry, forgot to put it in. :)

#19 ::: PiscusFiche ::: (view all by) ::: August 12, 2003, 11:17 AM:

Sigh. Must remember to read the comments before jumping in. Hehe. Looks like Yonmei beat me to the punch.

#20 ::: Jon Hansen ::: (view all by) ::: August 12, 2003, 11:37 AM:

I also note that as of right now, CNN.com has this story in the "More Top Stories" section (albeit the last one) on top of their webpage, while FoxNews.com has put it "below the fold," as the very last story at the very bottom of the page in their FoxLife section.

Hmm. What could this mean?

#21 ::: Yonmei ::: (view all by) ::: August 12, 2003, 12:30 PM:

My best real guess is that someone in the TSR art bullpen was simply slapping (tm) dingbats on every proper name in sight, doubtless on the orders of a manager who had gotten some kind of memo from the studio and decided that nobody would fire him for overdoing it.

That I can believe.

#22 ::: James D. Macdonald ::: (view all by) ::: August 12, 2003, 12:58 PM:

The loss of the Asprin trademark by Bayer was even weirder than that: It was taken as spoils of war from WWI.

#23 ::: Kellie ::: (view all by) ::: August 12, 2003, 01:53 PM:

I had heard about Franken's book because of this lovely incident. I'm providing Fox News's version of the fiasco to make sure I keep my coverage balanced. I could never be fair about this, though, since I think the both of them resemble five year olds playing tug of war with a toy.

But I'm with Jane on this. I wonder if I can get someone to got nucking futs about the title of my book just weeks before its release date. Hell, I'd even pay a very small fee for such a service.

#24 ::: Mike Kozlowski ::: (view all by) ::: August 12, 2003, 03:07 PM:
"'Franken is neither a journalist nor a television news personality,' according to the complaint. '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.'

Well, then there are solid grounds for confusion between his book and Fox News...

#25 ::: Jeremy Leader ::: (view all by) ::: August 12, 2003, 03:13 PM:

"Franken is neither a journalist nor a television news personality"

But didn't he play one on TV?

#26 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 12, 2003, 03:22 PM:

He's fully accredited on both counts. "Shrill and unstable" is just bizarre. And while he's no Garry Wills, his views have a perfectly reasonable amount of depth and insight -- far more so than many of the citizens FNN is pleased to accept as journalists.

There's got to be more to this story. It's going to be petty and spiteful and undignified, and I want to hear all about it.

#27 ::: Patrick Nielsen Hayden ::: (view all by) ::: August 12, 2003, 03:28 PM:

Come on, this is nonsense. Al Franken has been writing and speaking about political issues for over a decade.

He's a humorist, so Fox's lawyers are hoping they'll get a judge dim enough to accept their nutty assertion. However, by any reasonable standard, Franken is as much of a "serious" commentator as any number of Fox News goblins. (Remember R. A. Lafferty's immortal observation that "the opposite of 'funny' isn't 'serious'; the opposite of both 'funny' and 'serious' is 'sordid.'")

As to whether Franken is a "well-respected voice in American politics," why, let's let the market decide! Indeed, it appears that his book Rush Limbaugh Is a Big Fat Idiot was a #1 New York Times bestseller.

I think it's pretty suspicious when a foreign-owned outfit like Fox News starts slagging off the wisdom of the American marketplace, don't you?

#28 ::: Dave Slusher ::: (view all by) ::: August 12, 2003, 03:28 PM:

Franken was the "one man mobile uplink unit". Of course he is a journalist.

#29 ::: Jeff Crook ::: (view all by) ::: August 12, 2003, 04:33 PM:

someone in the TSR art bullpen was simply slapping (tm) dingbats on every proper name in sight

Oh, the tales I could tell.

As for trademarks, they must appear in the first significant usage on any printed page, but only once. You don't have to do it each and every time. Thank God. Because I am the only pitcher in our (R) and (TM) bullpen here at Postal Addressing Standards Park.

#30 ::: Jeff Crook ::: (view all by) ::: August 12, 2003, 04:35 PM:

Franken was the "one man mobile uplink unit". Of course he is a journalist.

That, like a lot of other things, used to be a joke.

#31 ::: Bill Higgins ::: (view all by) ::: August 12, 2003, 06:59 PM:

John M. Ford writes, "There was another licensed product -- I think it was the 'Escape from the Death Star' boardgame (from a different company) -- that was briefly notorious for having 'Tractor Beam(tm)' on the box copy. Again, there was probably never any paper filed; they were likely just wildly flinging the designation under the Designated Flinger Rule."

I saw a similar *Star Wars* board game with my own eyes. I can testify that they put a trademark symbol on "Hyperspace."

As for "fair and balanced" becoming trademarked by Fox News in 1998, the phrase was in common use before then, but what bearing does this have? I suppose it's not like a patent, where you must be the very first guy to come up with an invention.

Lexis-Nexis is really the proper way to do this, but lacking that, I googled up three utterances by public figures containing the phrase "fair and balanced:"

Transcript of Pat Robertson presentation on his show *The 700 Club* on 28 October 1994:
http://www.google.com/groups?selm=eeeCyF2o8.80K%40netcom.com&oe=UTF-8&output=gplain

White House transcript of intervew with President Clinton by Tim Scheld on 21 June 1993:
http://www.google.com/groups?selm=206sbkINN946%40life.ai.mit.edu&oe=UTF-8&output=gplain

A House speech on Yugoslavia by Rep. Helen Delich Bentley of Maryland, 1 August 1991:
http://www.google.com/groups?selm=CBEB671460000B35%40yubgef51.bitnet&oe=UTF-8&output=gplain

So it's easy to show that F&B was in common use, but I wonder whether that's relevant to the legal issues here.

#32 ::: Marc Laidlaw ::: (view all by) ::: August 12, 2003, 07:00 PM:

Encouraging:

http://1.junglescan.com/scan/details.php?asin=0525947647&days=7

#33 ::: Paul ::: (view all by) ::: August 12, 2003, 07:17 PM:

Anyway, Fox News have picked on the wrong people when they picked on the Penguin Group

Yeah, just ask David Irving.

#34 ::: Isabeau ::: (view all by) ::: August 12, 2003, 07:19 PM:

Speaking of Bayer, whenever I see an ad for Bayer pesticides I think of IG Farben.

Here's hoping you will, too.

#35 ::: Jordin Kare ::: (view all by) ::: August 12, 2003, 07:24 PM:

The loss of the Asprin trademark by Bayer was even weirder than that: It was taken as spoils of war from WWI.

Bob "Yang the Nauseating" may have something to say about that. (The white pills, of course, are aspirin.)

#36 ::: Mary Kay ::: (view all by) ::: August 12, 2003, 07:59 PM:

There's got to be more to this story. It's going to be petty and spiteful and undignified, and I want to hear all about it.

Wonder if it has anything to do with that nasty little slanging match O'Reilly and Franken got into on the C-Span book show?

MKK

#37 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 12, 2003, 08:13 PM:

Go on, Mary Kay? Tell all!

#38 ::: Mike Kozlowski ::: (view all by) ::: August 12, 2003, 08:36 PM:

Teresa: http://www.buzzflash.com/interviews/03/06/12_franken.html

#39 ::: Berni ::: (view all by) ::: August 12, 2003, 09:14 PM:

Don't forget that Intel tried to trademark a number. I remember it as "386" that they were trying to trademark, but perhaps it was "486" instead. After their attempt failed, they switched to real names.

(Names like "Pentium" and "Itanium," which always makes me wonder if they ever found that "T" they lost. Of course, I can't laugh. I now work for Spansion, a name which they came up with because it didn't mean anything dirty in any language they researched. They seem to have missed the obvious joke, though. Laid-off employees can say they're Ex-Spansion.)

#40 ::: Lois Fundis ::: (view all by) ::: August 13, 2003, 03:20 AM:

Meanwhile, Franken says the law protects satire. (I know copyright law protects parody. I'm not as sure about trademarks.)

He also claims (jokingly, I'm sure, just to forewarn anyone whose sense of humor is confused in the wake of so many weird-but-true recent events) to have trademarked the word "funny" so that Fox, in calling Franken "unfunny", violated his trademark.

#41 ::: Kellie ::: (view all by) ::: August 13, 2003, 11:18 AM:

Teresa, the links I posted in my comment above provide CNN's and Fox's descriptions of the C-Span book business. It's interesting to compare the two.

#42 ::: Stefan Jones ::: (view all by) ::: August 13, 2003, 03:07 PM:

Despite not being due out for over a month, Franken's book is in the #1 spot for sales on Amazon:

http://www.amazon.com/exec/obidos/tg/detail/-/0525947647

Hmmm. Could the folks who own the rights to The Three Stooges sue TSR* for muscling in on their schtick by "slapping dingbats??

* Yeah, yeah, I know that they were acquired and reacquired and the remnants assimilated (tm) into the Hasbro Collective by way of WOTC ages ago. I still think of TSR as the giant incontinent gorilla of the gaming scene.

#43 ::: Larry Lurex ::: (view all by) ::: August 14, 2003, 05:12 AM:

Fox is foreign owned? Are we talking about the same Fox which is owned by Rupert Murdoch, the famous American with an oriental wife several decades younger? The same?

He switched citizenship so he wouldn't lose his media empire.

#44 ::: Brian ::: (view all by) ::: August 14, 2003, 08:03 AM:

Why would FoxNews pick an absurd public fight with someone who's worked successfully for years as a SNL writer? Franken can handle abusive personal attacks quite handily, I'd imagine. They can't imagine they'd fluster him with this sort of thing, can they? Even without the petty, vindictive,and stupid angle, it seems ill-advised. I think "spitting into the wind" is the phrase I'm looking for.

#45 ::: Greg ::: (view all by) ::: August 14, 2003, 10:50 AM:

Re Nazi TM:

TSR did indeed do this. The basic story is that Lucasfilm gave them a list of "trademarks associated with the Indiana Jones" movie that TSR was supposed to adhere to. The list was probably put together by some assistant who simply went through the screenplay and wrote down the names of all the characters. Among whom were such un-named bit characters as "Nazi #1" and so on. So "Nazi" was on the list of trademarks that Lucasfilm ostensibly claimed. And TSR, being completely humorless and absurdly defensive of its own trademarks (another story) duly and robotically put a trademark symbol after every use of "Nazi" in the silly product.

#46 ::: Mary Kay ::: (view all by) ::: August 14, 2003, 03:40 PM:

Teresa, I sent this to you in email then realized I could just post it here. Looks as if I was correct in my speculation. O'Reilly was one of the main proponents for the suit
http://www.ruminatethis.com/archives/001548.html

#47 ::: Bob Webber ::: (view all by) ::: August 14, 2003, 06:19 PM:

Kellie, thanks for the Faux News page link. I note that they refer to Franken "took to the podium pushing his upcoming release..." while bashful Bill O'Reilly merely "was also on the panela0to discuss his upcoming release..."

"Fair and balanced," ya sure, you betcha.

#48 ::: Dennis Slater ::: (view all by) ::: August 18, 2003, 03:09 AM:

There is a good website that covers trademarks very well. http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#7 It is an overview and is written so most laypersons can understand it. I call your attention to section 8 concerning trademark dilution. Most everyone is familar with the infringement basics in section 7. I believe Fox's complaint is primarily based on the dilution of its trademark by Franken's use of it on a book cover.

Although I am not a trademark attorney I have had 8 years of experience as a trademark and patent liasion between a 200 million dollar division of a large, multi-billion corporation and corporate trademark and patent attorneys. I handled a substantial number of administrative trademark issues during those 8 years. The histrionics I have read in other comments above aside, Fox has a very good case based in trademark law. Penguin I understand is going to base its defense on the first amendment. This could be an effective defense for them, however there are some gaping holes that they need to get filled.

The trademark Fair and Balanced is actually a service mark used by Fox to identify broadcast/entertainment services it provides. There is little difference between a trademark and a service mark and many use them interchangeably. Fox does not have nor does it claim exclusive right to the use of the mark in every industry. Others could legally use to identify automobile tire repair services for example.

The PTO does not hand out trademarks like candy. It usually takes a 6 months to year to register a mark. The mark is carefully screened by the PTO's staff of attorneys and the mark is published for comments prior to it being issued. No courts or secret proceedings are involved. You do not have to register a mark to claim trademark status for it. My company had marks that were never registered (we were afraid our applications would have been denied by the PTO) that were valid trademarks that we would have defended in court if necessary.

A company vigorously defends its trademarks or risks losing them. Fox did the right thing in filing a complaint. My company would have done the same thing. Penguin may have taken a gamble by not asking for permission to use the mark in order to head off any annoying legal problems. I cannot believe they were ignorant about potential problems the use of Fair and Balance might cause. Now it is an interesting legal face off.

Then there is the matter of damages. In my opinion if you want to donate a few bucks to Fox, go buy the book now. Fox is, more than likely, smiling with every book that is sold. Fox will, in my opinion, get some money out of this.

Let me assure you from my experience trademark actions are not something companies frivolously do. Many people have tried to impute some sort of sinister motive to Fox. This is a ridiculous charge. Trademarks are serious business and can make or break a company so they are and should be defended with every possible means at the company's disposal. On the flip side, companies should make every effort possible not to infringe on anothers trademark.


Links:

PTO Link: http://www.uspto.gov/main/trademarks.htm
Trademark registration: http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=75280027
Complaint filed by Fox: http://news.findlaw.com/hdocs/docs/ip/foxpenguin80703cmp.pdf

#49 ::: Patrick Nielsen Hayden ::: (view all by) ::: August 18, 2003, 07:36 AM:

"Let me assure you from my experience trademark actions are not something companies frivolously do. Many people have tried to impute some sort of sinister motive to Fox. This is a ridiculous charge. Trademarks are serious business and can make or break a company so they are and should be defended with every possible means at the company's disposal."

The idea that Fox can't possibly be acting out of a bad motive because "trademarks are serious business" is definitely some kind of high point in the ongoing enterprise of defending the indefensible.

Fox may win their lawsuit--bad judgements get handed down all the time. But the idea that they didn't levy it in order to smack down a popular liberal simply doesn't pass the laugh test.

One of the basic agendas of the radical ideology that falsely calls itself "conservatism" is that we should all grant special respect and deference to "business," and indulge "business" in behavior that we wouldn't accept from ordinary human beings. Slater's post is a nice display of this whole approach, because he's just clunky enough as a writer to inadvertently lay the whole strategy bare. Let me set you straight, he says, because I know the business world. These are serious matters being engaged in by serious people, and if you think otherwise you deserve to be belittled ("ridiculous," "histrionics," etc). It is the special pleading of the pointy-haired boss.

#50 ::: Kellie ::: (view all by) ::: August 18, 2003, 10:18 AM:

Bob, you're welcome. I also like how in Fox's article Franken "snapped" whereas O'Reilly merely "said" things.

As for Slater's comments, I'm with Partick on this. The language of the lawsuit combined with its timing are on a long list of things that make you go Hmmmm with this whole affair.

#51 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 18, 2003, 10:37 AM:

Mary Kay sent me an apposite link about the case. Check it out.

#52 ::: Dennis Slater ::: (view all by) ::: August 18, 2003, 12:58 PM:

Patrick, probably unbeknownst to you, corporations are required to actively defend their trademarks or lose them. Trademarks can be extremely valuable assets. As an example, the Coke and Coca-Cola trademarks are probably more valuable that the secret formula for the product. Coca-Cola will go to extraordinary lengths to defend their trademarks. On the face of it their legal or preventive actions might seem heavy handed and unnecessary but in reality they are not. Infringement is an extremely nasty word in the trademark world and infringers are pursued no matter what their motivations or political colors are.

In the US, a company can be stripped of their trademark if they allow it to descend into common, non-specific use. The defense is to "actively defend" your trademark. Coca-Cola is the prime example of this. It used to be that when you went to your local restaurant and asked the waitperson for a Coke, you got whatever cola they carried without question. Now, if they stock Patrick's Magical Organic Bug Juice or whatever, the servers say "We don't have Coke, we have Patrick's." This is because Coca-Cola
doesn't want the trademark "Coke" to be genericized, so they "actively defend" their trademark by telling Patrick (and Pepsi, Schweppes, et al) that they'll sue if their non-Coke stores don't clarify the difference when customers order. The companies know that Coca-Cola has an army of checkers out there checking on them. And Coca-Cola definitely will sue. They have to. If the trademark Coca-Cola becomes genericized their business becomes almost worthless compared to what it is now.

Fox must defend its Fair and Balanced trademark or it is in danger of it becoming a generic phrase or tarnished to a degree it is worthless. You can ascribe any motive or agenda you wish to Fox in addition to their requirement by law to actively defend their mark, however that does not change the basic facts in the matter.

Penguin obviously had an agenda in mind when they used the words Fair and Balanced. Penguin/Franken are exploiting a phrase Fox had been using for years to describe its services in order to increase book sales. It doesn't matter if anyone thinks that the services Fox News is providing are actually fair and balanced. It doesn't matter if the phrase Fair and Balanced is used to describe things other than broadcasting and news services. Fox has spent time and money making that trademark known to an extent that Penguin can now commercially exploit it with malice of forethought for their own financial gain. If no one knew what the phrase Fair and Balanced represented (Fox news services) then Penguin would have never used it on their book cover. To emphasize their rank exploitation of the Fox trademark they had Franken standing in front of what appears to be a Fox news set wearing the garb of a news presenter on the book's cover. Parody? I don't think so. Penguin/Franken were just commercially exploiting Fox's well-known and respected(?) trademark. I use "?" because I seriously doubt that any news service is fair and balanced. I don't watch Fox News so I have no idea whether they are or not.

Penguin had choices. They could have asked for permission to use the trademark. They could have postively responded to letters Fox no doubt sent to them asking them to revise the cover of the book (not the contents). A simple application of white-out would have solved the matter. You can be sure Penguin weighed the possible financial gain coming from crassly exploiting the trademark with the cost of litigation and paying possible damages and elected to oppose Fox. It was strictly a business decision although they probably considered being able to tout their moral superiority of big bad Fox beating up on poor little Penguin as an extra benefit. Certain elements of our society lap that kind of self-serving BS up.

Fox is totally justified in its defense of its trademark. Just as you would be totally justified in being upset too if someone connected the name of your website that you have carefully developed and that has a favorable reputation (in some circles) with sorid porn*gr*phy services on another website. Since your site is not a commerical website like some blogs are, you may not have any legal recourse against the someone who would do that to you. A commerical site would probably have cause for action even though they have not registered their name as a trademark. If fact, commercial blog sites (Eschaton comes to mind) might be advised to consult with a trademark/copyright attorney if they are making a substantial amount of money so they can protect their investment in time and money.

Please excuse my clunky writing. I spent 6 years (slow learner?) in college learning to solve problems and not writing serious, pointy-headed essays about odes to urns. That doesn't mean I do not worship people who have the talent to write serious, logical, and well-contructed essays about odes to urns though.

#53 ::: James D. Macdonald ::: (view all by) ::: August 18, 2003, 01:03 PM:

Dennis, are you aware that "fair and balanced" was a generic phrase decades before Fox existed, and that it is not generally associated with Fox News in any case?

#54 ::: Jeremy Leader ::: (view all by) ::: August 18, 2003, 02:14 PM:

Dennis, I suspect Patrick knows a fair bit about intellectual property law. As I'm sure you do, too. You probably know much more than I do.

However, I'm not sure how justified Fox is in their defense of their trademark. If Franken's book had been about a totally unrelated topic, then using "Fair and Balanced" to make people think the book was connected to Fox would be a misuse of the trademark. On the other hand, using "Fair and Balanced" innocently, just because it sounded nice, with no idea that Fox had trademarked it, might be held to be dilution of Fox's trademark, and so forbidden.

But Franken was using "Fair and Balanced" _specifically_ in reference to Fox News. I think courtesy would suggest that Penguin should slap a "TM" on the phrase, and indicate that it is in fact a trademark of Fox, and is being used to refer to Fox's service.

But I can't imagine that trademark law forbids use of a trademark to refer to that to which it refers. After all, if "Fair and balanced" is a trademark of Fox News' service, then trademark law says it can _only_ be used to refer to Fox's service.

I can imagine there are plenty of corporate IP lawyers ready to claim that their firm has total ownership of any reference to their product or service, thus preventing any critical mention of it. I know in my field, there are products with so-called "shrink-wrap licenses" which forbid users of the product from commenting negatively about it; I believe such prohibitions have not been upheld in court.

In short, I readily believe Fox's lawyers think it's worth claiming that no one is allowed to refer to their service by trademark when criticizing it, but I hope that claim won't stand up in court.

#55 ::: Patrick Nielsen Hayden ::: (view all by) ::: August 18, 2003, 02:16 PM:

Dennis Slater keeps explaining that trademark law is real and earnest, as if this revelation will suddenly cause us to smite our foreheads and realize that Fox's suit against Penguin is meritorious.

It doesn't seem to cross his mind that many of us are as experienced in the business world as he claims to be, and yet nonetheless have a poor opinion of Fox for this stunt. I dunno, maybe he thinks we're all a bunch of liberal-arts college graduates who spent our time writing essays about urns.

What I know about Dennis Slater is that he appears to believe that Fox's reasons for going after Al Franken and his publisher have little or nothing to do with Fox's political loyalties and agenda. The way I figure it, anyone who can believe that is someone I'd love to negotiate a business deal with. Step right up.

#56 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 18, 2003, 02:53 PM:

Dennis:

Nonsense. Fox has no just claim on the phrase "fair and balanced", and I'm appalled that the matter's even being considered. It's equal to, or worse than, a trade publishing house trying to trademark phrases like space opera, summer reading, coming-of-age story, Regency romance, a good read, or a taut, suspenseful thriller.

Fox must defend its Fair and Balanced trademark or it is in danger of it becoming a generic phrase or tarnished to a degree it is worthless.
It's already a generic phrase. It's always been a generic phrase. That's the problem.

As for its becoming "tarnished" -- please don't try to tell me that the phrase has gained any luster through being associated with the Fox News Network.

You can ascribe any motive or agenda you wish to Fox...
Feel like taking that back? You ascribed motivations to Penguin in the very next paragraph, with far less justification.
Penguin obviously had an agenda in mind...
Nope. No obvious agenda there. Who sold you that cartload of hooey? Did you even ask for substantiation before you bought it?
...when they used the words Fair and Balanced. Penguin/Franken are exploiting a phrase Fox had been using for years to describe its services in order to increase book sales.
Nope. Completely false. It's not your own lie, but you're responsible for repeating other people's lies.

By the way: Did you actually read my original post? I believe I listed all these objections there. Go back and have another look.

"Penguin obviously had an agenda" is a mendacious piece of freep propaganda you've picked up and repeated whole. You personally wouldn't know an obvious publishing-house agenda if one walked up and bit you. I, on the other hand, would know a non-obvious toothless one. There is no evidence supporting the idea that there is any such "obvious agenda" on Penguin's part.

What does it tell us, that almost everyone was astonished to learn that Fox has claimed "fair and balanced" as their own trademarked phrase? It tells us that almost no one associates that phrase with the Fox News Network. (Quite the opposite, in fact.) If Fox has been using it for years, it's been used in such a way that no one has recognized it as a trademarked phrase.

It would thus make no sense for a publisher to try to use that phrase to associate a book with the FNN.

But the walloping huge lie there is that associating Al Franken's book with the Fox News Network would increase its sales. I'm sorry, but if that weren't such a piece of brazen effrontery, it would be funny. Are you out of your mind, that you'd believe such a thing? The natural audience for that book holds the Fox News Network in contempt. The argument has zero credibility. It's so implausible that I can't imagine it was made for any purpose other than harassment.

#57 ::: Dennis Slater ::: (view all by) ::: August 18, 2003, 03:04 PM:

James, I am fully aware that it was. It does not matter in most cases. If someone was using the term as a descriptive phrase for some aspect of their news operations on a consistent basis so that the phrase became associated with that news organization or its operations then it might be a problem. Casual use of the phrase in the past does not prevent Fox from adopting it as trademark for a particular service. Fox's trademark attorneys probably researched the phrase's past uses to death. Any uses they found (some are always found) probably were not a hinderance to Fox's adoption of the mark for use. If a significant problem is found, money can change hands and the problem will go away or if that does not work, another mark can be found.

Fox uses the phrase "Fair and Balanced" to describe a particular class of goods, broadcast and news services, not every possible use of the phrase. This is acceptable. If the phrase did not meet the qualifications for receiving a trademark it would have been denied. Once a trademark is accepted, it is published in the Federal Register for comments. Attorneys and people like myself, at one time, pour through these entries for new marks that may conflict with their own marks.

Trademarks applications are routinely denied by the PTO. Trademarks go through a rigorous screening process at the PTO and during the public review phase before they are registered.

The trademark "Apple" is a valid one used to describe certain computers and related products but the word "apple" has been around for a number of years. Apple Corp's use of the word 'apple' does not preclude anyone from using it for something like a line of shovels for example unless Apple Corp have previously claimed it for that use. If someone used the word apple in connection with a computer device I am sure Apple Corporation would be sending them a letter asking them to stop using their trademark. Or if someone used the word Apple in connection with a strange electronic s*xual device that had nothing to do with the uses Apple Corp claims for its Apple trademark (the lists of uses can be quite long in some cases) they could justifiably take exception to that as well because of trademark dilution. Using the Apple name on such a device could be considered trademark tarnishment. Apple, I assume, would not want the word Apple connected to s*xual devices.

A good source for information about trademarks is http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#7.

Another interesting site is: http://tess2.uspto.gov/bin/gate.exe?f=searchss&state=pdss04.1.1

You can use the search function to find whether a trademark exists for a certain word or phrase. It is interesting to look for words and phrases. Try the dictionary function. Type in a word like "Always" that Wal-Mart uses and you will see that the word is used in over 1300 different trademarks.

#58 ::: Lydia Nickerson ::: (view all by) ::: August 18, 2003, 03:17 PM:

Personally, I'm croggled that Fox News was permitted to claim "fair and balanced" as a trademark. It seems so close to the Onion story, Microsoft Patents Ones, Zeroes.

I dig the bit about losing your trademark if you don't protect it vigorously enough. That's why iceboxes can be marketed as refrigerators. What I don't understand is how it can be possible to trademark a term that is already in currency, such as "fair and balanced." Have journalism schools stopped using that term? If not, hasn't Fox already forfeited its right to the trademark by failing to vigorously enforce its trademark with J-schools?

As for the term being associated with Fox, bah! I had no idea. I thought the title was funny entirely because of the "fair and balanced" news coverage I've been subjected to for the last 10 years.

#59 ::: James D. Macdonald ::: (view all by) ::: August 18, 2003, 03:30 PM:

Dennis, I take you you aren't familiar with the trademark suit between Apple Computers and Apple Records? Frivolous suits can be brought, even when trademarks are on the line.

As far as various diligences go ... the PTO has done some very silly things. If I were reading all the trademark applications, and I thought that one was silly, I wouldn't have standing to object. And if some phrase wasn't one of my marks, I'd be unlikely to care. The thousands of people who read the lists are mostly irrelevant.

Do you recall that the PTO gave a patent quite recently to a method of making a peanut butter sandwich, by smearing jelly on one piece of bread, smearing peanut butter on another, placing them together, and then cutting off the crusts? I wouldn't put a lot of faith in the PTO until after the matter has gone to judgment finally sustained.

#60 ::: Dennis Slater ::: (view all by) ::: August 18, 2003, 04:23 PM:

Teresa,

Nonsense. Fox has no just claim on the phrase "fair and balanced",

The US Patent and Trademark office has the word mark Fair and Balance registered to Fox News Network. #75280027. That registration gives Fox News the legal claim to use the words "Fair and Balanced" to describe its "entertainment services in the nature of production and distribution of television news programs".

If you think otherwise contact the US Patent and Trademark office at the Trademark Assistance Center 703-308-9000. You do not have to take my word for it. I could be wrong. Karl Rove could have surreptitiously entered it to fool us.

As for its becoming "tarnished" -- please don't try to tell me that the phrase has gained any luster through being associated with the Fox News Network.

I am pretty sure that Penguin will not base its case on whether it can prove Fox currently has a tarnished reputation. Fox News is a substantial news organization that has the highest ratings in the industry. Since I do not watch it I have no idea what they present every night, but obviously the public thinks highly enough of them to watch them more than other news outlets. If Fox's reputation were already tarnished would this be the case?

Nope. No obvious agenda there. Who sold you that cartload of hooey? Did you even ask for substantiation before you bought it?

*slowly pulling up my cartload of hooey and some other things* Penguin is like most other corporations, they want to make money. Making a profit is their agenda. That is what I mean by agenda. (sorry, I should have known agenda is a loaded word on threads like these) I assume that Penguin is a for-profit organization that makes decisions about the things it publishes and how it publishes them based on a desire to maximumize profits. If they are in the publishing business for the money (again I do not know if they are or not), then it would seem extremely logical to me that they would design book covers to appeal to a certain audience that would buy the book. I cannot possibly assign a political agenda to them. I have to assume, without other information, that they are neutral in the political arena and are only publishing this book because they want to make a buck? Am I wrong?

Now, if they want to make a buck by increasing sales, they have to design a cover appropriate for the subject matter (I could probably come up with some odorous suggestions once I read the book.) and that would generate the most sales. What better way to generate sales, considering the audience for this book, than to have a cover on the book that depicts a broadcast news set that looks like Fox News set and then use a legal trademark owned by Fox News without permission to describe the books content.

This is called exploitation where I come from. If Penguin wasn't exploiting Fox News' trademark why did they put the trademark on the cover? You say "it's been used in such a way that no one has recognized it as a trademarked phrase" If that were true why did Penguin use the phrase in the first place when other phrases would have been sufficient and those other phrases would not have gotten them into legal trouble? Lucky coincidence? Hardly. Penguin knew, just as millions of Fox News viewers probably know, that the phrase represents Fox News broadcast news services or else Penguin would have probalby used some other design and combination of words. If you not believe that Penguin is purposefully using Fox News' trademark to enhance their book sales what can I say? I can think of no other reason for their use of words Fair and Balanced when other phrases would have worked just as well.

It would thus make no sense for a publisher to try to use that phrase to associate a book with the FNN.

No, it doesn't. Why did Penguin do it then?

#61 ::: Dennis Slater ::: (view all by) ::: August 18, 2003, 04:56 PM:

James

Dennis, I take you you aren't familiar with the trademark suit between Apple Computers and Apple Records? Frivolous suits can be brought, even when trademarks are on the line.

Why is it frivolous?

The thousands of people who read the lists are mostly irrelevant.

The people who scan the Federal Register either visually or electronically do it based on the classification(s) that their trademark fall into. They do not scan classifications that do not apply to their patents. This is a very important function in an organization. There are steps that a company can take to oppose the registration of a trademark. It is important as well to the trademark system in the country in general. The trademark attorneys at the PTO are fallible and do miss things but companies who have a vested financial stake in protecting their own trademarks probably will not.

Do you recall that the PTO gave a patent quite recently to a method of making a peanut butter sandwich, by smearing jelly on one piece of bread, smearing peanut butter on another, placing them together, and then cutting off the crusts? I wouldn't put a lot of faith in the PTO until after the matter has gone to judgment finally sustained.

Judging from the trust and confidence my company's attorneys seem to have in the PTO I have faith in their abilities and cannot pass judgement on them based on one case.

I haven't read about the peanut butter and jelly sandwich patent.

#62 ::: Reimer Behrends ::: (view all by) ::: August 18, 2003, 05:10 PM:
Lydia wrote: Personally, I'm croggled that Fox News was permitted to claim "fair and balanced" as a trademark.

It is possible to trademark descriptive phrases (as long as they aren't generic), if they have acquired a secondary meaning. Secondary meaning means that a majority of the public considers the mark to be indicative of the source of a product, rather than just being descriptive. You can even have a descriptive phrase entered into the supplemental register while you wait for it to acquire secondary meaning.

That being said, with descriptive phrases you have a good shot at a fair use defense as long as you use them, well, descriptively. In order to be infringement, a mark has been used as an indicator of the source of goods or services, etc. and there has to be the risk of the public being confused about it. I don't think that Fox has anything resembling a good case here.

An alternate claim might be tarnishment under the Lanham Act, but as Eugene Volokh has pointed out, Penguin has a pretty solid fair use defense against that, too.

#63 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 18, 2003, 05:25 PM:

Dennis:

Judging from the trust and confidence my company's attorneys seem to have in the PTO I have faith in their abilities and cannot pass judgement on them based on one case.
No.

I don't believe you any more.

You have no trouble passing judgement on any number of other cases and arguments, including ones where you lay claim to a great deal less expertise than you do here; and your judgements all lean in the same direction.

#64 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 18, 2003, 05:48 PM:

A few more remarks.

It would take far too much time, and far too many words, for me to respond to all the errors, misapprehensions, and misrepresentations in your explanation of Penguin's marketing strategies.

I don't mind putting more work into a response than went into the remarks I'm responding to, but I do object when it's this disproportionate. And I very much dislike arguing with someone who ignores my previous remarks, and instead just keeps tossing in new and unmeritorious assertions.

I have not been blunt before. Let me try this again. Penguin is an immensely distinguished publishing house, with a long history of worthy and innovative publishing as well as commercial success. The Fox News Network is trash, by trash, for trash. The idea that Penguin would try to "exploit" FNN's reputation is both risible and disgusting. So is the idea that either Penguin or Al Franken would want to be associated with FNN -- for commercial or any other reasons.

You are giving your credence and support to a transparently petty and vindictive attempt by Mr. O'Reilly to get even with Al Franken for revealing that O'Reilly has repeatedly and publicly lied about receiving a Peabody Award. What Al Franken said was true.

If you consider this worth your support, I shall feel obliged to take you at your own valuation.

#65 ::: Dennis Slater ::: (view all by) ::: August 18, 2003, 07:02 PM:


Okay. Be blunt when you finally answer this simple question.

Why do you think the immensely distinguished publishing house, with a long history of worthy and innovative publishing as well as commercial success used someone else's trademark on a book cover without permission?

You are giving your credence and support to a transparently petty and vindictive attempt by Mr. O'Reilly to get even with Al Franken for revealing that O'Reilly has repeatedly and publicly lied about receiving a Peabody Award. What Al Franken said was true.

If you consider this worth your support, I shall feel obliged to take you at your own valuation.

I have not given my support to Fox or Mr Reilly in any of my posts other than to say that, in my opinion from my experience in the trademark field, Fox seems to have a good case against Penguin. Penguin may have some good points with which to defend itself. I have said that too. I do not look at Fox's lawsuit with the same eyes that you do oblivously. You want to focus on the negative political aspect of it and I do not. Trademark lawsuits in my experience are filed to get the infringer to quit infringing. If Fox did not file a complaint there would be legal consequences for them so I cannot see the overwhelming revenge aspect to this that you do. There could be one but it is secondary to the trademark aspect of the suit if there is. Whether there is or not is speculation because no one knows what goes on in their boardroom or executive offices. Your confidence in Fox's alleged malfeasence is rooted in your hatred of Fox. I do not have an option of Fox or Mr Reilly because I do not watch either one of them. Never have. Just because someone is a Republican or calls themselves or itself conservative doesn't mean a blessed thing to me.

I have not mentioned Mr. Reilly in any of my posts. I could care less what Mr Reilly has said or done. I am just interested in talking about the trademark case not defending Fox or Mr Reilly. Nothing more or less. If you read my supporting them into my posts, what can I say? I merely think, not support the fact, that Fox has a good case. Is that a crime around here? I have tried to honestly answer all the questions and comments directed at me. Are only the viewpoints that you agree with the only ones that are welcome here? Because everyone else here seems to lean the same way does mean I have to lean that way too?

#66 ::: Patrick Nielsen Hayden ::: (view all by) ::: August 18, 2003, 07:22 PM:

" I have tried to honestly answer all the questions and comments directed at me."

Pull the other one. You've done a very skillful job of turning every conversation you join into an endless argument with the same assertions repeated over and over again.

"Are only the viewpoints that you agree with the only ones that are welcome here?"

Obviously not, as you know perfectly well. At this point, you're just making shit up.

I don't think you're honestly here for conversation. I think you're here to waste a lot of people's time.

#67 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 18, 2003, 09:54 PM:

Dennis, the answer to that question was in my original post, and it's been answered repeatedly since then.

The arguments you embrace are not worthy of you, and the time we waste on them (you included) will never come back to us again.

#68 ::: Mary Kay ::: (view all by) ::: August 18, 2003, 09:55 PM:

Why do you think the immensely distinguished publishing house, with a long history of worthy and innovative publishing as well as commercial success used someone else's trademark on a book cover without permission?

Cause maybe like the rest of us they had no idea that common journalistic phrase had been trademarked? And were merely attempting to be ironic?

MKK

#69 ::: Graydon ::: (view all by) ::: August 18, 2003, 10:44 PM:

Denis, you've just argued that I can't write a book called Apple Computer: a quarter century of mistaken innovation if Steve Jobs doesn't want me to.

Do you think free speech is a good idea even a little bit?

#72 ::: James D. Macdonald ::: (view all by) ::: August 18, 2003, 11:28 PM:

Here's the patent on peanut butter sandwiches with the crusts cut off.

The problem is that the Patent and Trademark Office has not, in fact, been doing its job. And no one is going to check for, or object to, common phrases that do not concern them.

"Fair and balanced" has been used of news gathering and news reporting for decades at least. Which brings up two interesting thoughts ... can Fox be sued for false advertising if they start using their alleged trademark? And ... should I patent "flamewars"?

#73 ::: Patrick Nielsen Hayden ::: (view all by) ::: August 18, 2003, 11:38 PM:

Or, as someone remarked, "If Fox News can sue Al Franken over 'Fair and Balanced,' can the rest of us sue Fox over 'News'?"

#74 ::: James D. Macdonald ::: (view all by) ::: August 18, 2003, 11:46 PM:

It certainly looks like the Patent part of the PTO hands out patents like candy. Do they require anything other than if the check clears?

And here's an Australian who patented the wheel.

I wonder, when he brings a suit against the Ford Motor Company for using his invention, will Ford pay up? If you want to give money to an Australian lawyer, buy a car....

#75 ::: Chad Orzel ::: (view all by) ::: August 19, 2003, 08:02 AM:

Back in the late 90's, I heard a talk at a physics conference about the troubles in the Patent Office. Apparently, they have trouble keeping people on (the salary for a patent clerk is not that great), which means that they're chronically understaffed. This led to a loosening of the restrictions on patents-- it's no longer necessary, for example, to provide a working model of a device you'd like to patent. All you need to prove is novelty.

Predictably enough, this has led to a gigantic increase in the number of patents granted to perpetual motion machines and other forms of kookery. Worse yet, there are apparently a few people in the office who are "Free Energy" loons, who don't even pretend to look critically at this nonsense.

#76 ::: James D. Macdonald ::: (view all by) ::: August 19, 2003, 08:27 AM:

Weirdly, Elvis, Jesus & Coca-Cola by Kinky Friedman fails to have ® beside the word "Coca-Cola" on the cover.

(It also fails to have the words "A novel" on the cover, even though it is one. "A novel" is an almost-certain sign that a given book is not worth reading.)

#77 ::: Patrick Nielsen Hayden ::: (view all by) ::: August 19, 2003, 08:36 AM:

"'A novel' is an almost-certain sign that a given book is not worth reading."

To the contrary, the presence of the phrase "A Novel" on a book cover is an "almost-certain sign" that somebody in the publishing process thought the title or cover design looked like nonfiction.

This happens to worthy and unworthy books alike.

#78 ::: Jon Hansen ::: (view all by) ::: August 19, 2003, 08:47 AM:

Looking elsewhere in the USPTO's database, it seems that Fox News has also trademarked:

"We Report. You Decide." (filed 3/26/97)
"Washington Classified Too Many Secrets." (filed 6/30/98) - I think they've dropped a : somewhere in there, but that's how it's listed.
"The Most Powerful Name in News." (filed 10/28/98)
"The Official Morning Show of the New Millennium." (filed 1/14/99)
"America's Election Headquarters." (filed 2/17/00)
"Bulls & Bears." (filed 9/1/00)
"Fair. Balanced. Unafraid." (filed 7/22/02)

and my favorite:
"Cashin' In." (filed 9/20/02)

#79 ::: Kate Nepveu ::: (view all by) ::: August 19, 2003, 09:33 AM:

To the contrary, the presence of the phrase "A Novel" on a book cover is an "almost-certain sign" that somebody in the publishing process thought the title or cover design looked like nonfiction.

Ah! Thank you, that's puzzled me occasionally.

#80 ::: Adina Adler ::: (view all by) ::: August 19, 2003, 02:23 PM:

In today's New York Times (free, but registration required), there's an op-ed piece by Paul Newman, who's decided to file a trademark violation suit against the Office of Housing and Urban Development (commonly known as HUD).

#81 ::: Jeremy Leader ::: (view all by) ::: August 19, 2003, 04:25 PM:

One of the complaints I've heard leveled at the PTO is that a primary source of funding is fees from accepted applications. As a result, there's tremendous pressure to see applicants as the (only) customers, and to approve as many applications as quickly as possible. This criticism was aimed at the patent side, but I wouldn't be surprised if the trademark side was in a similar situation.

Is the PTO even _supposed_ to evaluate trademarks? I thought they just registered them, which provided a central place to search for possible conflicts. As I understood, registering a trademark meant that the PTO had published the relevant info, and perhaps had concluded that the mark passed some basic guidelines, but any real conflict is expected to be resolved by the courts, not by the PTO at registration time.

#82 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 19, 2003, 06:04 PM:

If they can trademark "Bulls & Bears", either the process is risible, or it doesn't do what people think. Even Dennis Slater would be too embarrassed to argue that FNN has a reasonable claim on that phrase.

What are they going to do? Bring a lawsuit against Bowling Green's brazen bull? Sue Herblock? Claim that William Beard's The Bulls and Bears in the Marketplace (1879) is an infringement? File for possession of Lou Dobbs?

#83 ::: Jon Hansen ::: (view all by) ::: August 19, 2003, 06:29 PM:

I don't think it does what they think it should. For example, someone else has filed a trademark for "Bulls and Bears" (filed 5/13/03) to protect a stock market based board game. The Monopoly of our time, I'm sure. But does the ampersand make that much difference?

It's also interesting to read the descriptions of what they're intending to trademark. Fox News describes their goods & services trademarked with the relatively brief phrase of "Entertainment services in the nature of an on-going television business news program."

By comparison, CNN has trademarked the phrase "Your choice. Your voice." Their description of the goods & services protected as "educational programs in the nature of workshops and online curriculums for junior and senior high school students and teachers that teach the democratic/election process in the United States."

#84 ::: PiscusFiche ::: (view all by) ::: August 19, 2003, 07:07 PM:

"Washington Classified Too Many Secrets." (filed 6/30/98)

Does Universal, distributor of the movie, Sneakers, realize that Fox is trying to use the phrase "Too Many Secrets"?

#85 ::: Alan Bostick ::: (view all by) ::: August 19, 2003, 09:47 PM:

Dennis Slater: Why do you think the immensely distinguished publishing house, with a long history of worthy and innovative publishing as well as commercial success used someone else's trademark on a book cover without permission?

For starters, perhaps it never occurred to anyone involved with the acquisition, editing, or production processes that Fox News had actually attempted to trademark the phrase.

C.E. Petit is a lawyer. A publishing lawyer. With experience in trademark and other IP matters. Petit says:

Now for another unfavorable comment about the profession.

The idiots who filed Fox v. Franken would, in Illinois, be required to turn themselves in to the Attorney Registration and Disciplinary Commission for filing a lawsuit without a good faith basis in fact or law for the purpose of harrassment (or another improper purpose). However, New York does not impose such a requirement on counsel. This may explain a great deal. It may explain nothing, too, as it is highly doubtful that the ARDC would act on such an action.

"Fair and balanced" was used in advertising as a description of news reporting during the Watergate era, long before there was a Fox News. On its face, then, the mark is not registrable. Given the various boycotts among politicians going around these days, it is not even an accurate descriptor (of any of the major news sources, print or media, let alone Fox), and thus cannot acquire secondary meaning.

Then there's the whole issue of exemplars. And the Victoria's Secret decision. It seems pretty clear that inadequate consideration was given to these issues; one might even question whether they were considered at all, but at the hourly rates no doubt paid to prepare the complaint somebody would have padded the bill by noting review of them.

Perhaps the law is an ass. What, then, does that make those who try to use (loop)holes? [emphasis added]


#86 ::: James D. Macdonald ::: (view all by) ::: August 20, 2003, 10:22 AM:

No one enters suit justly, no one goes to court honestly; they rely on empty pleas, they speak lies, they conceive mischief and bring forth iniquity.

Therefore justice is far from us...Judgment is turned away backwards, and justice stands afar off; for truth has fallen in the public squares, and uprightness cannot enter. Truth is lacking, and he who departs from evil makes himself a prey.

Isaiah 59: 4,9-11, 14-15

#87 ::: James D. Macdonald ::: (view all by) ::: August 21, 2003, 08:58 AM:
A new committee called the Fair and Balanced PAC plans to launch its www.bushrecall.org Web site Thursday. The PAC's founders include Joe Lockhart, a press secretary to former President Clinton, and Mike Lux, a Democratic political consultant.

Read all about it.

#88 ::: Tim ::: (view all by) ::: August 22, 2003, 11:54 AM:

"One of the complaints I've heard leveled at the PTO is that a primary source of funding is fees from accepted applications. As a result, there's tremendous pressure to see applicants as the (only) customers, and to approve as many applications as quickly as possible. This criticism was aimed at the patent side, but I wouldn't be surprised if the trademark side was in a similar situation."

Actually, my father worked for the USPTO, and he told me (I know, this is already a FoF story for everybody but me,) that the reason for not being as careful was that certain politicians have released a number of the restrictions regarding patenting and trademarking, so that now people can sue for smaller issues. As a result, the USPTO has been swamped with applications, and cannot take to time to inspect them as closely as they used to. But then, this makes me wonder why they don't throw away "patently" ridiculous applications like those mentioned above.

I wonder whether "The Proper Way to Skin a Cat" would work?

#89 ::: PiscusFiche ::: (view all by) ::: August 22, 2003, 06:20 PM:

http://asia.reuters.com/newsArticle.jhtml?type=entertainmentNews&storyID=3324319

Now I can stop yelling at my TV.

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