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Fox Sues Humor Writer for Using 'Signature' Slogan (Al "Irrelevant" Franken)
Yahoo! News ^ | August 12, 2003 | Reuters

Posted on 08/12/2003 8:31:50 AM PDT by El Conservador

NEW YORK (Reuters) - Fox News Network is suing humor writer Al Franken for trademark infringement over the phrase "fair and balanced" on the cover of his upcoming book, saying it has been "a signature slogan" of the network since 1996.

According to court papers made available on Monday, Fox is seeking a temporary or permanent injunction against Franken and publisher Penguin Group to stop them using the phrase in connection with the book to be published next month.

The network, part of the News Corp group, also asked Manhattan Supreme Court for compensatory and punitive damages.

The title of liberal satirist Franken's new book is "Lies and the Lying Liars Who Tell Them." At the bottom of the planned cover is the tag line, "A Fair and Balanced Look at the Right."

Fox claims the use of the phrase is intended to confuse the public and boost book sales.

In the lawsuit, Fox said the network was created "as a specific alternative to what its founders perceived as a liberal bias in the American media."

A spokeswoman for Penguin imprint Dutton, Lisa Johnson, called the lawsuit "extraordinary."

"In trying to suppress Al Franken's book the News Corp is undermining First Amendment principles that protect all media by guaranteeing a free, open and vigorous debate of public issues," she said.

"The attempt to keep the public from reading Franken's message is un-American and runs contrary to everything this country stands for."

Franken worked as a comedy writer in the 1970s and has appeared frequently on "Saturday Night Live."

Reuters/VNU


TOPICS: Culture/Society; News/Current Events
KEYWORDS: alfranken; foxnews; lawsuit; trademark
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To: libravoter
""They have the right to exclude others from using them in conjunction with the provision of television news and entertainment services""

"Satire directed at Fox is definitely protected from the trademark law you are citing."

Not necessarily. Satire is not an absolute defense. Certainly not when the same mark is used on the same goods.
51 posted on 08/12/2003 9:48:48 AM PDT by Atlas Sneezed
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To: Your Nightmare
If Fox looses (and they will), maybe they can send Franken a bill for marketing & promotion.

Good job, Fox! Really brilliant!
52 posted on 08/12/2003 9:50:13 AM PDT by Your Nightmare
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To: Beelzebubba
Not necessarily. Satire is not an absolute defense. Certainly not when the same mark is used on the same goods.

Is Franken's book "entertainment services in the nature of production and distribution of television news programs"?
53 posted on 08/12/2003 9:53:42 AM PDT by Your Nightmare
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To: Paul Atreides
What a "f"ing J.O.
54 posted on 08/12/2003 9:54:26 AM PDT by Constitutional Patriot (Socialism is the cancer of humanity.)
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To: Beelzebubba
Well, whether the products are sold in the same channels of trade is a factor in the analysis, but wouldn't be dispositive here, where there is at least some relationship between the infringing and infringed products (if the book was called something like "The Fair & Balanced Guide to the Middle East," Fox might conceivably have a case). Agree with the other posts, though, that likelihood of confusion (the test of infringement) is extremely far-fetched here.
55 posted on 08/12/2003 9:55:24 AM PDT by triplejake
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To: skeeter
I'm not even sure what the man believes.

I think he's in the "What would Wellstone do?" wing of the Democrat-media complex.

56 posted on 08/12/2003 10:00:04 AM PDT by irgbar-man (It's Really Gonna Be AllRight.)
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To: KarlInOhio
How does all of this relate to Spike Lee "spiking" the "Spike channel" for trademark infringement? Is that another case of a company being afraid of looking bad when a minority complains about something? A ruking was made against the channel, and in favor of Spike. Was that affirmation action justice?
57 posted on 08/12/2003 10:04:47 AM PDT by DeweyCA
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To: All
Is it REALLY Satire?

None of us has read the "book" and I think we're all making a leap of faith assuming that this "humorist" would stick faithfully to his genre - whatever that is.

It appears that Franken AND Penguin knew exactly what they were inviting. Any publisher of volume would no doubt have dealt with copyright issues and wordmark suits at some time in the past - at least enough to know what to expect from something like this.

There looks to be no blatant disclaimer on the cover offered stating "Not Affiliated with News Corp" so someone not intimately familiar with either Franken or Fox may put 2 and 2 together and get "Franken's book is from Fox". It's not too hard to imagine a non-US person not knowing who Franken is.

Bottom line is that Franken is using a wordmarked phrase and the images in the background are there to suggest a connection to the contents being about Fox. If he were a bit more intellectually honest (an impossibility, I'm sure), he would have the words FOX NEWS somewhere in the title instead of alluding to the connection in the manner he did/is.

58 posted on 08/12/2003 10:29:37 AM PDT by Range Rover (Karma is a boomerang...)
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To: DeweyCA
A ruling was made against the channel, and in favor of Spike.

All the ruling said was that the channel shouldn't be marketed as SpikeTv until the case was decided.

But the ruling also required Spike to put up an ungodly amount of money to be forked over as damages if Spike lost.

Hence, I believe they settled because they both had so much to lost. SpikeTV was supposed to go on the air in days, and so the channel wanted to market itself as SpikeTV ASAP, and Spike Lee stood to lose multi-millions if he lost his case.

59 posted on 08/12/2003 11:47:26 AM PDT by libravoter (Live from the People's Republic of Cambridge)
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To: El Conservador
Trying to cash in Fox's popularity

What a great idea...cashing in on someone's popularity, (and, while you trash them, yet)

I plan on using the words

By Al Franken

someplace in the subtitle of a satirical novel

Maybe the title could be like this

Healing Malformed Teeth in the Middle East:
A Novelized Biography of the esteemed Egyptian Orthodontist

By Al Franken

My main character will be a orthodontist named By Al Franken.

Maybe I'll include a caricature of the orthodontist on the cover that looks like Al Franken in scrubs, too.

Putting Franken's name and picture on the cover should boost sales.

60 posted on 08/12/2003 5:48:36 PM PDT by syriacus (I plan to use the words "By Al Franken" in the subtitle on the cover of my next book.)
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To: Range Rover
Is it REALLY Satire?

Good question. Lately Franken has been insisting he tells the truth. He is acting as though his book is filled with facts.

61 posted on 08/12/2003 5:58:36 PM PDT by syriacus (I plan to use the words "By Al Franken" in the subtitle on the cover of my next book.)
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To: Beelzebubba; libravoter
The Federal Trademark Dilution Act of 1995 indicates that companies can claim infringement if the defendant's use of a trademark (such as corporate names Coca-Cola and Xerox, or their logos) causes "blurring" or "tarnishment" of the trademark in the eyes of consumers. The act makes no clear exception for parodies or satires.*

Proving dilution of a mark: Under the Dilution Act, famous marks are protected against the dilution of the distinctive nature of the mark. There is no need to prove a likelihood of confusion, nor is there any need to show competition between the goods of the plaintiff and the defendant. Therefore, it is possible to use a dilution cause of action against users of the same mark even when the defendant's goods and services bears no relation to the goods or services of the famous mark.

Dilution causes of action are normally brought when the defendant's use of the mark causes either

However, the Act makes clear that certain actions will not be subject to the provisions of the Act. Specifically, the Act states that fair use (such as comparative advertising), noncommercial use (such as noncommercial web pages), and all forms of news reporting and news commentary (which would apparently include reporting and commentary appearing on the Internet) would not constitute dilution under the Act.

62 posted on 08/13/2003 6:22:54 PM PDT by optimistically_conservative (Can't prove a negative? You're not stupid. Prove it!)
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To: JustAnAmerican
But if they're using their trademark in conjunction with pictures of people are their network, doesn't that make a difference?
63 posted on 08/13/2003 6:23:54 PM PDT by Hildy
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To: El Conservador
Since when was Al Franken a humor writer?
64 posted on 08/13/2003 6:25:03 PM PDT by CWOJackson (The World According to Garp isn't that bad when compared with The World According to Todd.)
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To: Paul Atreides
Interesting cover.

The title is "Lies, liars and the lying liars who tell them."

And the most prominent person on the cover is...
65 posted on 08/13/2003 6:29:08 PM PDT by SerpentDove (Each post focus-group tested for maximum wallop.)
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To: Saundra Duffy
Depends on if Franken is a parody or a serious work.

The Martin Luther King Jr. family has denied the use of King's speeches in serious analysis works for decades. In essence preventing any discussion.

DC comics automatically prevents homosexual revisionists from using Batman/robin works.

From what I have been seeing, Al Franken is trying to do a serious work. He has a problem. Enough of a problem to withstand at least the motion to dismiss.

Can you imagine the trial exposing the bitter small person that franken is? Its sid blumenthal all over.
66 posted on 08/13/2003 6:30:22 PM PDT by longtermmemmory (Vote!)
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It looks like FOX will lose it and the Dems will milk it and Franken will gain credibility.
67 posted on 08/13/2003 6:32:45 PM PDT by Consort
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To: Consort
Are there other books with the "fair and balance look at..." in the title?

I would not be so quick to dismiss the case. I can see how this could be mistaken for a Fox news sanction SERIOUS book.

No one has answered the question if this is a serious analysis. From the AP story its a serious analysis. Serious does not equal parody. Al will pay $$$.
68 posted on 08/13/2003 6:48:00 PM PDT by longtermmemmory (Vote!)
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To: El Conservador
I think Fox knows in its heart it's just a big joke, and it deliberately acts in an outrageous manner--it's the Ann Coulter of TV News.
69 posted on 08/13/2003 6:49:11 PM PDT by xm177e2 (Stalinists, Maoists, Ba'athists, Pacifists: Why are they always on the same side?)
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To: xm177e2
If you mention Coulter etiquete requires a post of her picture.

FR is nothing if not civilized.
70 posted on 08/13/2003 7:13:55 PM PDT by longtermmemmory (Vote!)
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To: longtermmemmory
No one has answered the question if this is a serious analysis. From the AP story its a serious analysis. Serious does not equal parody. Al will pay $$$.

Fox reported today that the book is #1 in pre-published books as a result of its lawsuit. Al will make big bucks and probably donate some to help Dems beat Repubs. It may not matter matter how serious the book is.

71 posted on 08/17/2003 4:52:02 AM PDT by Consort
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To: CWOJackson
Since when was Al Franken a humor writer?

I believe in the early days of SNL

72 posted on 08/20/2003 6:05:43 PM PDT by AgThorn (Go go Bush!!)
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