It isn’t often that one laughs out loud at a Federal District Court judge, but leave it to the Fox News suit against Al Franken to produce such an outcome.
here are hard cases and there are easy cases," said Chin. "This is an easy case. The case is wholly without merit both factually and legally?It is ironic that a media company that should seek to protect the First Amendment is instead seeking to undermine it."
Dori Ann Hanswirth, Fox’s lawyer, argued that buyers might be confused and think that the book was actually put out by Fox News, thus diluting and tarnishing the Fox brand. "Defendants’ use of the Trademark?on the Preliminary Cover is likely to cause confusion among the public about whether Fox News has authorized or endorsed the Book, and about whether Franken is affiliated with FNC [Fox News Channel]," said the suit. "Franken is commonly perceived as having to trade off of the name recognition of others in order to make money."
Chin didn’t buy it. "Is it really likely someone is going to be confused as to whether Fox News or Bill O’Reilly is endorsing this book?" asked the judge.
"It is likely consumers could believe that," replied Hanswirth. Later she added, "There’s no real message that this is a book of humor or political satire. It’s a deadly serious cover and it’s using the Fox News trademark" to sell itself.
In response, the judge pointed out that one of O’Reilly’s own books is titled "The O’Reilly Factor: The Good, the Bad, and the Completely Ridiculous in American Life." "Is that not a play on "The Good, The Bad and the Ugly?’" Chin asked, noting that the movie title is also trademarked.
"I don’t know," replied Hanswirth.
"You don’t know?" asked the judge.
That’s about as bad of a day in court one can have as a lawyer. But it got worse,
Abrams said that if Fox pursued its case, he would challenge the validity of the "Fair and Balanced" trademark itself.
In delivering his scathing opinion, Chin suggested that Abrams would probably succeed in such a challenge. "The mark is a weak one," he said. "It’s highly unlikely that the phrase ‘Fair and Balanced’ is a valid trademark."
When you go to court and learn you may lose a trademark and not just the case to protect the trademark you just hook up the IV full of gin right there.
My suggestion to Franken is not to just be reimbursed for legal fees, but file suit proclaiming it a frivolous lawsuit. If you win, you get to use it every time a blowhole on Faux News whines about frivolous lawsuits. It’s like job creation for satirists.