BOB GARFIELD: We're back with On the Media. I'm Bob Garfield.
BROOKE GLADSTONE: And I'm Brooke Gladstone. On Friday, oral arguments were heard in Fox News' recently-announced suit against the left wing humorist Al Franken. The news outlet claims that he is infringing on their trademark slogan with the title of his new book: "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right." Well, a couple of weeks ago we got a letter from Paul Janensch, an associate professor at Quinnipiac University. He wrote: "I use the terms fair and balanced in my teaching materials. Will Fox News Channel come after me for trademark infringement?" Since we poke a little fun at Fox every now and then, we were wondering if we should be a little nervous ourselves, so we put in a call to Frank Dehn, a lawyer who teaches a course in Media Law at Syracuse University. Frank, welcome to OTM.
FRANK DEHN: Pleasure to be here.
BROOKE GLADSTONE: So our letter writer was being obviously a bit glib, but it is important to note that trademarks of common words or phrases don't affect everyday usage.
FRANK DEHN: Well, that's correct. They affect commercial uses, and that's what Fox News has stated here -- that because Al Franken's making a commercial use of the term "fair and balanced" in his book, therefore it violates the copyright, which is absurd, but-- that's the allegation.
BROOKE GLADSTONE: Well you can trademark say "Apple" for a computer or "Let's Roll" for a charity, right?
FRANK DEHN:Sure, you can, but-- you can't trademark any phrase under the sun. This particular phrase, "fair and balanced" was clearly intended by Fox News to be descriptive of the service that it officers, and descriptive trademarks really shouldn't be registered. One interesting question is how this trademark got registered in the first place.
BROOKE GLADSTONE:But the trademark applies only to, quote, "entertainment services in the nature of production and distribution of televised news programs" anyway, so the fact that Al Franken uses it as part of a title of a book shouldn't obtain anyway, right?
FRANK DEHN: Well, that's right. You know the first hurdle is whether the thing should have been registered in the first place. Now that it is registered, you're absolutely right that it's registered to apply to a class of services, and that's not what Mr. Franken did, obviously. So Fox News had to go to a second line of argument which is as follows: Some trademarks are so famous and so pervasive that they get additional protection. An example of this might be Xerox. If someone were allowed to use Xerox even in another context as applied to different goods and services, it would blur the trademark and its value and therefore should be prohibited.
BROOKE GLADSTONE: So you think they have a bad case on a variety of levels.
FRANK DEHN:I think they have pretty much of a zero case. [LAUGHTER] But let me talk about the one case in which this most recently came up. A fellow had a little lingerie shop called Victor's Little Secret and was sued by Victoria's Secret and they said you're blurring our famous trademark, and the Supreme Court there ruled that in order to prevail in a case for blurring or tarnishment of a trademark you'd have to show not only that your mark is famous that you suffered actual economic injury. So Fox News here would have to have some way of showing that they're being economically hurt because Al Franken used "fair and balanced" in the title of his book. I don't think so. In fact I don't even think most of the people who watch Fox News are going to go out there and buy Al Franken's book and vice versa, so--economic injury is going to be very hard to show.
BROOKE GLADSTONE:However, economic benefit seems to be manifest -- at least for Al Franken. I understand that on the Amazon Best Seller List it was hovering in the 400s until Fox announced the lawsuit and then it shot up to number one! So that's not bad for a book that only comes out in September.
FRANK DEHN: Yeah, well let me tell you something. Roger Ailes is a really smart guy. He knows that no matter how much beneficial publicity this results in for Al Franken, it's going to result in a lot of beneficial publicity for Fox News. It's going to keep people talking about Fox News and about fair and balanced, so-- both these guys are going to be laughing all the way to the bank when this is over.
BROOKE GLADSTONE:Well you say that it's fundamentally a nuisance suit or perhaps a PR suit. But you also raise the point that Al Franken could have a good point in his defense by saying that Fox would have to justify the use of the phrase fair and balanced, and could Al Franken actually challenge them for false advertising?
FRANK DEHN: No court of law is going to want to make its objective judgment over whether this network is really fair and balanced. But I think it has raised another interesting question which is that Mr. Franken or for that matter one of Fox News' competitors could go back to the trademark office and say you know you ought to cancel this trademark. It never should have been granted in the first place, because you can't register a trademark in fair and balanced news any more than I should be able to register a trademark in "cold" to describe the beer that I sell! By the way, if, if Fox really didn't intend fair and balanced to be descriptive of its services, then they can make the case that it was intentionally mis-descriptive, and that-- It shouldn't be registered for that reason either! But no, this is a, a, a -- a great example of legal gamesmanship or, really, the use of the legal system to achieve perhaps some very important but really unrelated ends.
BROOKE GLADSTONE: Well, thanks very much.
FRANK DEHN: I've enjoyed it immensely. Thanks, Brooke.
BROOKE GLADSTONE: Frank Dehn is an attorney for Smith, Dornan & Shea and a visiting professor of communications at Syracuse University.