Originally posted by Nordstrodamus
Also, can someone who thinks this lawsuit has merit please tell me how one could ever use the term "fair and balanced" in a title without violating trademark? Would it have to be something like:
"Al Franken's Satirical Look at Fox News' Use of the Term 'Fair and Balaned'"
okay, i am no expert on this sort of thing, but use of a trademark phrase or even "look and feel" varies in degree, depending on what it's trying to sell. also, it depends on the context in which the phrase is used.
here's an example which may or may not help: during apple's "think different" phase, if i were another computer maker and tried to use the phrase "think different" to sell computers such as "rok's computers: think different", i am in direct violation. not only am i using a trademarked phrase, but i am in direct competition with the vendor who owns the trademark AND i am not making ANY attempt to differentiate the trademarked phrase from the owner's use. i don't have a leg to stand on.
BUT what if, instead of making computers, i ran a bookstore? "rok's books: think different" i might have a better case, as my use doesn't infringe on apple's market, but, again, it uses the phrase verbatim from it's trademark, and if i used it with marketing materials that also borrowed visually from apple's, they could make the case that i am using their trademark to make profit, because i am not parodying them, and instead just being lazy and taking a look, feel and motto and applying it to my own business. if apple decided to make me stop, they probably could fairly easily.
now let's say i played with the phrase a little. let's say it's still "rok's books" but now i use the phrase "read different." unless i am playing directly to apple's core market (like i only sold books about macs) or used their visual identity, they'd have a much harder case against me. sure, they probably would because i would still be a small vendor and couldn't keep up the legal costs, but technically, it would take them longer to wear me down. heck, along these lines, there was at least one major auto manufacturer who used the phrase "drive different," and apple didn't lay a glove on them.
there's also a matter of exposure. they have a much better case that i am using their trademark to compete in the same space if i am a large retailer. if i am a mom and pop store in the middle of nowhere, the case (weak though it is) could be made that i cannot be considered a serious threat to apple's marketshare through my use of the phrase.
finally, let's go that last step: "rok's alternative books: authors who think different". NOW, i am not in the same retail space, so i am not in competition, i am using it in context off a larger phrase which helps it have a more unique identity (but isn't completely unrelated to the overall product), and (let's assume) i am not aping apple's visual identity either. apple would have a hell of a time proving in a court of law that, no matter how successful my business was, that it has anything to do with apple, their ability to sell, market, etc. i doubt apple would even bother with me, and even if they did, i would probably win.
in al franken's case, he is teetering on the edge. sure, he modifies the context, but considering the demographic he's going for AND the visual look on the cover, the case could be made that he is unfairly leveraging the money and effort that fox news put forth in promoting "fair and balanced" as a trademarked phrase instead of thinking up something original on his own. but if he is parodying fox news in his book, it helps his cause, and he didn't just call it "al franken: fair and balanced", which also helps him a lot.
anyway, this is just a mish-mash compilation of how i understand that laws as they have been told to me over the years, and may not be entirely accurate. basically, can fox news sue? sure. but their time and money could probably be put to far better use than this.