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Judge calls conservative network case against comedian "wholly without merit" -- and says it could lose "fair and balanced" trademark.
Aug 23, 2003 | His voice full of amused contempt, U.S. District Judge Denny Chin refused Fox News' request for an injunction against author and comedian Al Franken's new book on Friday. "There 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."
The hearing couldn't have gone better for Franken, who is being sued by Fox because the network claims his new book, "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right," violates Fox's trademark of the phrase "Fair and Balanced." Fox had sought to block Franken's use of the phrase pending a trial for trademark infringement, in which it hoped to win compensation for damages.
But Chin's ruling suggested there might not be a trial. Besides rejecting Fox's petition for an injunction, Chin practically invited Franken's lawyers to file for dismissal. And he hinted that if it pursues its lawsuit, Fox may lose the very trademark it's trying to defend -- a trademark that, according to the suit, Fox has spent $61 million promoting.
In its legal filings, Fox's suit has imitated the bellowing bluster of its talk show star Bill O'Reilly, who by several accounts pushed the network to take on Franken. It called Franken a "C-level political commentator" with a "sophomoric approach to political commentary" who "appears to be shrill and unstable" and whose views "lack any serious depth or insight."
"[S]ince Franken's reputation as a political 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 blue or tarnish Fox News' distinctive mark," the lawsuit argued with O'Reillian self-righteousness. Yet Fox wasn't able to set the tone in Chin's downtown Manhattan courtroom, where the afternoon hearing unfolded with wry, low-key humor, all of it at the network's expense.
The cover of Franken's book shows the author, dressed in a conservative blue suit, standing in front of a quartet of television monitors showing the heads of O'Reilly, Ann Coulter, George Bush and Dick Cheney, with the word "Liar" splashed across them all in red. It arrived in stores Thursday, its release date moved up weeks to capitalize on the lawsuit's publicity, which catapulted it to the top of Amazon.com's bestseller list.
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.
