"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.

"I don't know," she repeated, before arguing, once again, that Franken is "intending to use the trademark to sell the product."

Hanswirth went on to argue that Franken has diluted Fox's trademark by using it "to ridicule Fox's No. 1 talent, Mr. O'Reilly." She then suggested that, because Coulter is on the cover, "somebody looking at this could determine Ms. Coulter has some kind of official relationship with Fox."

"The president and vice president are also on the cover, are they not?" asked Chin. "Are consumers likely to believe they are associated with Fox News?"

Defending Franken was legendary First Amendment lawyer Floyd Abrams, who seemed to be enjoying himself as he presented his case to a sympathetic court. "A book is allowed to criticize the holder of a trademark and is allowed to mock a trademark as well," he said. Were it otherwise, "it would be a different country."

He pointed out that Fox's lawyers don't seem to believe their own argument the book might be mistaken for a Fox production. After all, one of their initial complaints was that the cover was "defamatory per se of Mr. O'Reilly." Abrams quoted a letter from one of Fox's lawyers to the Penguin Group, Franken's publisher, saying that the word "Lies" written over O'Reilly's face "unquestionably designates Mr. O'Reilly as one of the 'Lying Liars' to which the title of the book refers."

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."

Regardless, he said, "There is no likelihood of confusion. It is highly unlikely consumers are going to be misled into believing that Fox or O'Reilly are sponsors" of the book. "I don't know if Fox is arguing that its consumers are less sophisticated than people who would buy the book."

When the court adjourned, a Fox spokesman offered a terse statement. "We don't care if it's Al Franken, Al Lewis or Weird Al Yankovic, we're going to protect our trademark and our talent."

Abrams, meanwhile, told a throng of reporters that he was waiting to see whether Fox proceeded with its case before deciding whether to file for dismissal. "In light of Judge Chin's statement," he said, he and his team will also consider trying to force Fox to pay Franken's attorney's fees. And he noted that even if he doesn't get the opportunity to attack Fox's trademark of "Fair and Balanced," Chin's ruling opened the door for others to try. "It's now a very shaky trademark," he said.

"Fox came in here saying, 'We spent $61 million on this trademark,'" Abrams said. "It would be poetic justice if Fox News were to lose the trademark they came into court to protect."

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