Hey, I see boingboing is no longer labeled "Fair and Balanced".

The Economist had a pretty witty line about this whole thing
(from memory):

This lawsuit might be able to do what was previously considered
impossible: associate the words "fair and balanced" with Fox
news in the minds of liberals.

Edited by author 08-19-2003 10:48 AM
"I'm pretty conservative and I generally enjoy Fox News, but I thought conservatives were supposed to be against frivolous lawsuits."

Yes. However, conservatives are also all about material rights, especially property rights, and have recently come to believe that intellectual works, branding, image and trademarks are property.

Case in point: There can't be a more conservative company than Disney, yet try taking the name of the Mouse in vain, and see how long it takes before a Disney SWAT team comes battering down your door.

So if you are one of the conservatives who is making a bazillion off of Fox News, which is notoriously light on content but heavy on branding, you're not going to consider frivolous any lawsuit which protects that branding.

Don't forget that 'Apple' is a trademark in the music space,
too. (The record label of the Beatles.)

"So, why are common words and phases allowed to be trademarked?"

Because then every product would to use osbscure words and phrases which would hardly be efficient. Is it really so wrong that a major computer company has a trademark on "apple" for the computer space?

"With every editorial expression of outrage, FOX News signals its mission statement to the masses. Conservative-leaning news consumers don't give a whit about whether you can trademark "fair and balanced" -- that's not the point of the message. By building up Franken as an enemy (and the more books he sells the better), FOX can sell a battle, a crusade. It's politics as entertainment. And FOX knows a lot about entertainment."

I'm pretty conservative and I generally enjoy Fox News, but I thought conservatives were supposed to be against frivolous lawsuits.

Found on poynter.org's forums page (no permalinks, grrr):
http://www.poynter.org/forum/?id=letters

Fox is waging a clever marketing campaign
8/14/2003 10:47:16 AM
Posted By: Jim Romenesko

From TREVOR BUTTERWORTH: Prof. Balkin may be right in saying that "Fox News vs. Franken is merely one episode in a much larger conflict between freedom of speech and intellectual property rights;" but does anyone seriously believe that, in this particular case, FOX is doing anything more than waging a very clever marketing campaign?

With every editorial expression of outrage, FOX News signals its mission statement to the masses. Conservative-leaning news consumers don't give a whit about whether you can trademark "fair and balanced" -- that's not thepoint of the message. By building up Franken as an enemy (and the more books he sells the better), FOX can sell a battle, a crusade. It's politics as entertainment. And FOX knows a lot about entertainment.

If the media establishment stopped whining about FOX News, it wouldn't go away; but it would lose much of its maverick, 'we stick it to the liberals' cachet. Fortunately for Ailes and Co, you can take liberal earnestness to the bank.

some code for today:

fair and balanced since <?php print date("F j, Y, g:i a") ?>

Edited by author 08-15-2003 12:23 PM
I know nothing of the laws that surround this sort of thing, so I really can't add anything to that part of this discussion (though a minor detail like that doesn't always stop me).

I have an issue with something in linked doccument. here is the quick little quote...

"Good lord. Who among the five, possibly ten percent of the American people who could recognize Franken in a lineup would think that he's affiliated with the Fox News Channel?"

I believe that's the point of Fox News' issue. If only between 5% and 10% of people know who Franken is, that may mean that the remaining 90% to 95% of the population could be fooled into thinking the book is somehow Fox News endorsed.

Not that I care honestly. The most fun I've had watching CSPAN was watching Franken give the little speach at the white house press dinner maybe 5 years back. Heck, I'm happy he is getting the free pub.

Hi CG. Common words and phrases can be trademarked only if they have some unique association with the product or service. Purely descriptive words cannot be trademarked because they provide no unique identity to the product. Sometimes, over time, a more descriptive term can become uniquely associated with a particular product and can acquire trademark rights.

To the extent that "fair and balanced" is a trademark here, it is because "fair and balanced" is not a term normally used to identify television news programs. You don't turn on the box to watch the "fair and balanced", you watch the news. The irony here is that by claiming trademark rights to "fair and balanced", Fox News is implicitly asserting that "fair and balanced" is not descriptive of their program.

I find myself wondering if they aren't claiming it's a trademark because otherwise they could be sued for false advertising...

Well I'm not a lawyer, but let me pipe up anyway. :^) Re: /m13
Common words and phrases can be trademarked when they are
associated with a product that someone is using selling or
profiting from. Trademarks for non-commercial purposes are
more difficult to obtain. Non-profits can do it, but last I
checked, I can't get a trademark (or a servicemark) on my
nickname, "Eli the Bearded" -- I do not use it to sell anything
or to promote something that earns me money. (Servicemarks are
like trademarks, but apply to for-sale services.)

Part of trademark law requires only that there be no confusion
in the market for the product associated with the mark. So
Unix can be a trademark for an operating system
seperately from being a trademark for diapers because
it is very unlikely anyone would confuse them.

The disclaimer on the fairandbalanced.info site talks about
copyright, which is a whole different ball of wax. US Patent
and trademark info is at www.uspto.gov, while copyright info
is at www.copyright.gov (a Library of Congress site). This
copyright FAQ (there are several FAQ lists) is relevant:

http://www.copyright.gov/help/faq/faq-protect.html

Copyright can give you much stronger protection, but is not
feasable to use on small text works. But you can copyright
the editing, selecting, and non-alphabetical sorting of
things. And copyright can allow you (excluding 'fair use' usage)
to prevent any usage, even in non-confusing contexts.

The thing about knock-offs, is they can be allowed. Consider
how many dictionaries are available. Or how many companies
make street maps. It is just that the names and logos cannot
be confusingly similar (trademark law) and the contents cannot
be exact copies (copyright law).

Edited by author 08-14-2003 03:22 PM
Do you think DR Anolick is going to get in trouble for using "fair and balanced" almost twenty years ago?
http://groups.google.com/groups?q=+%22fair...bentley.UUCP&rnum=1

crypto: (or any trademark lawyers) So, why are common words and phases allowed to be trademarked? Couldn't the law just say: don't knockoff goods or you'll be fined? (Yes, I am an innocent.)

And is anyone else using "fair and balanced" now on their site? I am. OK, maybe I went overboard.

The origin and main purpose of trademark law is consumer protection, not namespace property rights. The point is to protect consumers from knockoff goods, to ensure that consumers can rely upon the brand as a legitimate indicator of the source of the product. Protecting the producer is secondary. Modern capitalism has turned that on its head.

Brian...you have it right, NBC could not add the 'fair and balanced' line to their broadcasts.

Edited by author 08-13-2003 01:42 PM
I am so happy for Al Franken. You couldn't buy better publicity.
Al's book was at number 804 on Amazon before the suit and Today it is at number 1 !!!!!!
centrifugalforce