Fair and Balanced

[Arnold Zwicky]

barbara need reports on the fox news network's suing al franken for,
among other things, trademark violation, over his use of the phrase
"fair and balanced" in the title of his latest book.  we've been
over some aspects of u.s. trademark law here, but i'm still a bit
unclear on the fine points.

what strikes me as outrageous in this case is that if fox really has
registered "fair and balanced" as a trademark, then they're declaring
that the phrase is "just an expression" and not a descriptor (so that
they are under no obligation to demonstrate that they are actually
fair and balanced in their news coverage), a claim that should
certainly be open to dispute, given that representatives of fox have
actually maintained that their coverage is fair and balanced and
that critics of the news service have denied this.

the makers of Cascade dishwashing liquid have no obligation to
demonstrate that their product creates cascades of suds (it doesn't,
and that's a good thing in a product meant for automatic dishwashers);
a reasonable person wouldn't suppose that such a claim had been made.
(such names are chosen to produce good feelings *without* making
debatable truth claims.)  but you couldn't register Cures Cancer as a
name for a multi-vitamin supplement - possibly as a name for
*anything* - because a truth claim would be implied.  i would have
thought that Fair and Balanced was definitely on the Cures Cancer
end of the scale.

(i realize that discussions of points of law are probably beside the
point here, since the fox suit was surely designed primarily to be
intimidating in every imaginable way.)

but supposing that fox has registered the phrase as a trademark and
can defend that, they'd still have to show that franken's use of it
blurred or diluted their use of it or could cause confusion.  well,
we'll see how that works out.

what *is* the status of slogans (as opposed to names) in trademark
law?  has the new york times trademarked "all the news that's
fit to print"?  (there's no trademark symbol next to it on the
masthead.)  bethany?

arnold