Fair and Balanced

[Baker, John]

        Trademarking does not give you the right to charge every time someone uses a phrase.  (That would be copyright, although you can't copyright "Good morning," which is already in the public domain.)  But yes, it is possible to trademark a common phrase.  For example, suppose that you owned a bakery and started selling muffins under the name "Good Morning."  You could get a trademark on "Good Morning," and nobody else would be able to sell muffins under that name.  As it happens, "Good Morning" has indeed been trademarked by a number of people selling different products.

        Some putative trademarks are considered generic, and registration is not available.  You could not get any registration on "running shoes" by itself.  Trademarks that are merely descriptive or deceptively misdescriptive get a lower level of protection, unless they have acquired distinctiveness.  Frankly, "fair and balanced" sounds generic or descriptive (or, really, deceptively misdescriptive) to me - most news sources claim to be fair and balanced, and it would never occur to me to think "Fox News" when I hear "fair and balanced."

        The news accounts of the Fox News lawsuit make it sound frivolous, sufficiently so that Fox may risk sanctions for bringing the case.  However, I haven't seen the complaint, which may make a stronger case.

John Baker



-----Original Message-----
From: George Thompson [mailto:george.thompson at NYU.EDU]
Sent: Tuesday, August 12, 2003 4:07 PM
To: ADS-L at LISTSERV.UGA.EDU
Subject: Re: Fair and Balanced


I have wondered about the point that Frank Abate raised -- how can a common expression, frequently used, be trademarked?  Can I trademark "Good morning" and charge people to say it?

GAT

George A. Thompson