Fox vs. Franken

A fair and balanced set of excerpts from the Fox News lawsuit against Al Franken over alleged trademark theft. Plus: Outraged replies from Franken and others.

Topics: Fox News, Al Franken, D-Minn., Bill O'Reilly,

Fox News [Network], the owner and operator of the world famous Fox News Channel (“FNC”), is the owner of a federal trademark registration in the mark “Fair & Balanced”. Fox News has used the mark “Fair & Balanced”, sometimes depicted as “Fair and Balanced”, (the “Trademark”) to distinguish and brand FNC’s distinctive method of newsgathering and reporting since its well-publicized launch in October 1996. “Fair & Balanced” has been a registered trademark of Fox News since December 22, 1998. Fox News has made continuous use of the Trademark since 1996, and the mark has become a signature slogan of FNC.

Fox News employs a variety of on-air news personalities to give FNC its distinctive, number-one rated position in the national cable news marketplace. Prominent among those news personalities is Bill O’Reilly (“O’Reilly”), who is the host of cable television news’s number-one rated program “The O’Reilly Factor.” …

Penguin, through its imprint, EP Dutton (“Dutton”), plans to publish “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right,” written by Franken (the “Book”), on September 22, 2003… The preliminary cover of the Book (the “Preliminary Cover”), which is on display, among other places, in advertisements for the Internet sale of advance copies of the Book and on defendant Franken’s official web site, prominently features Fox News’ trademark “Fair and Balanced” as well as a photograph of O’Reilly in what appears to be the FNC television studio…

Defendants’ intent in using the Trademark in this unauthorized fashion is clear — they seek to exploit Fox News’ trademark, confuse the public as to the origin of the book, and accordingly, boost sales of the Book. This behavior constitutes willful trademark infringement…

Moreover, since Franken’s reputation as a politicial commentator is not of the same caliber as the stellar reputations of FNC’s on-air talent, any association between Franken and Fox News is likely to blur or tarnish Fox News’ distinctive mark…



FNC was launched in October 1996. From the time of its launch until the present, FNC has been dedicated to presenting news in what it believes to be an unbiased fashion, eschewing ideological or political affiliation and allowing the viewer to reach his or her own conclusions about the news. FNC was created as a specific alternative to what its founders perceived as a liberal bias in the American media…

FNC’s balanced approach to reporting the news has become extremely popular and FNC is now the most watched 24-hour news network in the nation… Indeed, during the 2003 war in Iraq, FNC was the most watched cable news source for up-to-the-minute news. According to “Advertising Age” magazine, FNC is “the biggest cable winner” and its “grip on the crown seems even tighter now.” …

Currently, “The O’Reilly Factor” is the most popular program on FNC. “The O’Reilly Factor” bills itself as a “No Spin Zone” and the goal of the program is to present the audience with the straight facts while allowing the audience to reach its own conclusions about the news…

O’Reilly himself has become a national celebrity and one of America’s most trusted sources of news and information. He is inextricably linked with Fox News and the “Fair and Balanced” trademark in the minds of the viewing public…

To reflect its unique approach to the reporting of news, FNC adopted the slogan “Fair and Balanced,” along with the phrase “We Report, You Decide” at the time of the network’s inception…

On April 23, 1997, Fox News applied to the United States Patent and Trademark Office for a trademark in the phrase “Fair & Balanced” for “entertainment services in the nature of production and distribution of television news programs.” On December 22, 1998, Fox News’ trademark in “Fair & Balanced” was registered on the PTO’s Principal Register. Since then, Fox News has also obtained a registration on the Principal Register in “Fair. Balanced. Unafraid.” in connection with neckties.

Since 1997, Fox News has expended $61 million and thousands of hours in promoting and advertising its brand, including the “Fair and Balanced” mark. These marketing efforts have global reach…

In addition, Fox News has developed merchandise for sale that includes the “Fair and Balanced” logo… [a] Fox News mug contains the phrase “Balance is Important in News and Hot Coffee.” There is also a “Fair and Balanced” necktie available for sale on the Fox News web site in a number of colors…

Defendants use of the Trademark in the Book is likely to cause confusion among the public about whether Fox News has authorized or endorsed the Book…

Indeed, as Franken admitted during [a recent Los Angeles book expo], the “Fair and Balanced” trademark was, in fact, used on the preliminary cover of the Book for the express intention of capitalizing on FNC’s reputation…

Franken has recently been described as a “C-level political commentator” who is “increasingly unfunny.” Franken has physically accosted Fox News personalities in the past, and was reported to have appeared either intoxicated or deranged as he flew into a rage near a table of Fox News personalities at a press correspondents’ dinner in April 2003. Franken is neither a journalist nor a television news personality. 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. Franken is commonly perceived as having to trade off of the name recognition of others in order to make money. One commentator has referred to Franken as a “parasite” for attempting to trade off of Fox News’ brand and O’Reilly’s fame in the Preliminary Cover of his Book…

As a result of Defendants’ actions, Fox News is irreparably harmed…

[Editor's note: Following are statements released by Al Franken and his publisher, Dutton, on Aug. 12 in response to the lawsuit.]

Al Franken:

I normally prefer not to be out of the country on vacation when I’m sued. However, from everything I know about law regarding satire, I’m not worried.

But I’d like to thank Fox for all the publicity. As far as the personal attacks go, when I read “intoxicated or deranged” and “shrill and unstable” in their complaint, I thought for a moment I was a Fox commentator.

And by the way, a few months ago, I trademarked the word “funny.” So when Fox calls me “unfunny,” they’re violating my trademark. I am seriously considering a countersuit.”

Lisa Johnson, Executive Director of Publicity, Dutton:

It is extraordinary that one of the largest media corporations would take such action. In trying to suppress Al Franken’s book, News Corp. is undermining First Amendment principles that protect all media by guaranteeing a free, open and vigorous debate of public issues. The attempt to keep the public from reading Franken’s message is un-American and runs contrary to everything this country stands for.

James Gleick, spokesperson for Authors Guild:

Fox News’ attempt to use trademark laws to silence criticism is deplorable. Book authors and publishers, television journalists and networks all depend on First Amendment protections to pursue their craft. News organizations, which willingly enter the rough-and-tumble of public debate, must accept the possibility of drawing sharp criticism as part of the bargain.

If Fox disagrees with Mr. Franken’s position, it has ample access through its affiliated companies to respond in a manner that respects our joint need for vigorous, open debate. That way, the various positions can be heard, and people can decide.

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