BETTER WORDS, BETTER ESSAYS
An acquaintance of mine made a rather interesting argument that the lawsuit by Fox News [sic] against satirist Al Franken had a legitimate basis. The crux of his contention is that since Fox had trademarked the phrase "Fair & Balanced," they were required to defend it against alleged misuse, otherwise they would lose the trademark. He also says the flap is a bunch of whining by liberals who hate Fox. Of course, if the suit had merit, the judge might not have dismissed it so quickly.

He did make many legitimate points. The problem is that Fox didn't. Fox decided to name call Franken for name calling them as name callers. This made it come across as not a high-minded strictly legal argument, but as a loud-mouthed bully throwing a temper tantrum because he can dish it out but can't take it. Further, they advanced the farcical argument that someone might confuse Franken's book as a Fox product. If they'd made my acquiantance's arguments, they wouldn't have come across so ludicrously.

Newspaper headlines satirize trademarked slogans all the time, yet they're not sued. So it makes me wonder how unlimited trademarks are. Not having expertise in that area, I don't know. But according to the US Patent and Trademark office (USPTO), A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.

So if I use a trademarked phrase in a context unrelated to that distinguishing/identifying purpose, am I violating a trademark? For example, if I say "Gimme a break" in response to something ridiculous, am I violating Kit Kat's trademark? If Franken uses that phrase in a context unrelated to news' delivery (Fox's goods), is he violating the trademark? If he uses the phrase as part of a longer title, is it a violation? Apparently at least one of these answers is no, since the judge dismissed the suit so quickly.

No one is challenging Fox's right to use "Fair & Balanced" as a trademark slogan, even most of THINK it's totally inaccurate. The question is: how far does trademark protection extend? Does it apply to things unrelated to that which the trademark is intended to protect?

I think this situation is far less bizarre than the lawsuit against Papa John's pizza a few years ago. Papa John's used the slogan "Better ingredients, better pizza." They were sued by a rival (forget which) who said they shouldn't use that slogan because their ingredients and pizza were no better than the rival's. Which begs the question related to my fundamental point, if I say 'my sister makes better pizza than me', am I violating Papa John's trademark?

'Better ingredients, better pizza' is a subjective opinion, just like 'fair & balanced.' Do you expect them to say they have crappier food than Pizza Hut? A news' channel that claims to be objective, are they going to say they're not 'fair & balanced.' That's what promotion is about! Convincing people you're better than your competitors.

And finally, and significantly, a search of the USPTO shows that Fox News Corp. trademarked the phrase "Fair & Balanced." Franken's book subtitle uses the phrase "Fair and Balanced." Sure, it's a miniscule difference, but law, especially trademark and copyright law, is often based on such miniscule differences. So technically, Franken did NOT violate Fox's trademark.