Fox lose over Franken's 'Lies' book
From Phil Hirschkorn
CNN
NEW YORK (CNN) --A federal judge, saying, "This is an easy case," Friday ruled against Fox News in its lawsuit asserting that a new book by liberal satirist Al Franken violates their trademarked slogan, "fair and balanced."
Fox was seeking an injunction to halt distribution of Franken's book, "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right."
U.S. District Judge Denny Chin, after listening to about half an hour of oral arguments, said the lawsuit was "wholly without merit, both factually and legally."
The 377-page book, which originally had a late September publishing date, went on sale Thursday.
Fox objected especially to its cover, which displays the "fair and balanced" phrase in its subtitle and an unflattering photograph of the news channel's most popular anchor, Bill O'Reilly. It argued that the cover layout "is likely to cause confusion among consumers as to the origin and sponsorship of the book."
But the judge disagreed. "There is no likelihood of confusion as to the origin and sponsorship of the book ... or that consumers will be misled that Fox or Mr. O'Reilly are sponsors of the book," he said.
As for the trademarked phrase itself, Chin said that it was "unlikely a valid trademark. ... The mark is a weak one as trademarks go."
Along with O'Reilly, still frames on the book's cover also show President Bush, Vice President Dick Cheney and conservative commentator Ann Coulter in separate TV monitors, around the title's first word, "Lies."
Fox alleged the cover also tarnished it by association with defendant Franken.
Though Franken has appeared as a Fox News Channel guest at least 10 times in the past five years, according to Fox, he is not affiliated with the network, which, in court papers, called his commentary "not good enough to be endorsed by Fox News."
Franken, who won four Emmy awards for his work on "Saturday Night Live," is the author of four previous books, including the recent best seller, "Rush Limbaugh is a Big Fat Idiot."
Presale orders of "Lies" drove it to the top sales position at the online bookseller Amazon.com.
Fox said the U.S. Patent and Trademark Office granted it a trademark for "fair and balanced" in December 1998, two years after the cable channel's launch.
Fox alleged Franken and his publisher, Dutton, a member of Penguin Group, "seek to trade off FNC's and O'Reilly's reputation and credibility to sell a book that is neither endorsed or sponsored by them" and that the cover layout "is likely to cause confusion among consumers as to the origin and sponsorship of the book."
On the contrary, Franken's attorneys said, there is no evidence of confusion, and the "raucous" title makes it obvious that the subtitle "should be taken with a grain (or two) of salt."
Franken's attorneys said the title is a parody "hoisting Fox (and O'Reilly) by their fair and balanced petard" with a "tongue-in-cheek use" of the trademarked term that "leaves no question that the book is critical of Fox."
For example, one chapter is called "The Chapter on Fox: They Distort, We Deride or We Retort, They Have Lied or They Purport, We Decry or They Are Short, We Have Plied or Smorty Smort, Blort Deblort."
Franken describes Fox News Channel as "obviously slanted to the right" and its chairman, former Nixon-Reagan-Bush strategist Roger Ailes, "a cynical Republican ideologue with no regard for fairness and balance."
Another chapter focused on O'Reilly is subtitled, "Lying, Splotchy Bully."
Franken's attorneys say, trademark or not, the phrase "fair and balanced" is as old as journalism itself, a principle taught in journalism classes and "common vocabulary of the news media dating back well before Fox even existed."
In addition, Franken's attorneys say, the Fox motion is too late, since books are already in stores.
The network first learned of the book cover at a book fair in May but did not seek court action for 10 weeks.
"Fox has ... sat on its supposed rights for too long," the author's attorneys say in court papers. "Fox has simply failed to act with the promptness required of a litigant seeking the extraordinary relief demanded here."
Franken's publisher has shipped 270,000 copies to stores and has ordered a second printing of 50,000 copies, said spokeswoman Lisa Johnson.