U.S. District Court Judge Denny Chin observed recently that, “There are hard cases and there are easy cases.” He continued, “This is an easy case.”
At that point, the lawyers representing Fox News Channel in its trademark lawsuit against Al Franken must have paused before reading further. What they found as their eyes moved through Judge Chin’s opinion was that Judge Chin, who sits on the U.S. Federal Court, Southern District of New York, ruled against Fox. Fox’s request for an injunction prohibiting the distribution of Franken’s tome, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right” was denied.
Back in May, Franken and Bill O’Reilly, Fox’s franchise player, locked horns in a vitriolic and vituperative exchange as guest panelists (along with Molly Ivins) at the Book Expo America 2003 in Los Angeles. The advertised topic of the panel discussion was media bias. It turned into a verbal Wrestle Royale.
O’Reilly was incensed his photo (along with Ann Coulter, George W. Bush and Dick Cheney) accompany Franken’s visage on the cover of “Lies.” Franken confronted O’Reilly, pointing out that O’Reilly lied when he said previously that his former show, Inside Edition, won two Peabody awards.
Peabody is among the most prestigious awards in the industry. Actually, Inside Edition won a George Polk Journalism award.
O’Reilly explained he confused the Polk and the Peabody and misspoke. He called Franken an idiot and told him to shut up! He didn’t say he misspoke at that point.
O’Reilly’s temper was so enraged that he refused to shake hands with Franken. Reportedly, their battle continued backstage where O’Reilly told Franken he would hear from Fox’s lawyers.
Next thing Franken hears is that he and his publisher, Penguin Group, are defendants in Fox’s trademark infringement suit. At the time, Franken was on vacation in Italy.
Franken commented, “I normally prefer not to be out of the country on vacation when I’m sued.”
Fox’s suit alleged it had trademarked the phrase “Fair and Balanced.” Franken’s use of the phrase, Fox continued, in the title of “Lies” is an infringement of Fox’s trademark.
Fox’s complaint went on to say Franken was shrill and unstable, and either deranged or intoxicated when he attacked Fox and O’Reilly at an April press dinner.
Franken, when he read this allegation that he was shrill, unstable, deranged and intoxicated, said, “I thought for a moment I was a Fox commentator.”
If you think Fox was holding anything back in the suit, think again. Fox leveled the cruelest cut of all to Franken, who wrote for “Saturday Night Live” for 15 years, when it stated Franken had been described as “increasingly unfunny.”
Responding to this volley, Franken said he had trademarked the word “funny” and was contemplating a trademark infringement countersuit against Fox. And so, the issues were joined for Judge Chin to rule upon.
At a hearing held on Fox’s request for an injunction, Dori Hanswirth, Fox’s lawyer, argued that the cover of “Lies” would confuse the public and cause it to believe this was actually a book by Fox. The reason: O’Reilly’s photo and the use of Fox’s trademark “Fair and Balanced.”
Judge Chin at that point observed that President Bush and Vice President Cheney’s photos were also on the cover. Would this cause the public to believe they are part of the Fox network team, he asked. Audible laughter crept into the courtroom.
Judge Chin’s ruling was “quick and clear” (a phrase which I believe has not yet been trademarked by Fox). He denied the request for the injunction. Fox was trying to undermine the First Amendment, Judge Chin stated.
More to the point, Judge Chin found the Fox suit “wholly without merit” both “legally and factually.”That’s right, not a penny’s worth of merit in Fox’s lawsuit.
As anyone who follows TV talk shows, newspapers and talk radio knows, one of the topics du jour for conservatives is tort reform. And frivolous lawsuits are the poster boy trotted out as the main reason that reform is needed.
One wonders if FoxNews Channel v. Franken will now be Exhibit No. 1 to support the need for litigation reform. Of course, one can always dismiss it as a liberal judge furthering a liberal agenda.
The ironic footnote to Fox’s misguided legal adventure is that sales of Franken’s book are taking off like Seabiscuit out of the gate. Yet Fox remains unbowed although it may be bloodied. While not yet trademarked, apparently Fox’s lawyers comprehend “wholly without merit.” Fox dismissed the balance of its lawsuit. Rather than simply walking away, Fox’s spokeswoman, Irena Steffen, discussing the decision to dismiss the suit said, “It’s time to return Al Franken to the obscurity he’s normally accustomed to.”
Don’t bet on it, Irena.
— Larry Glenn is an attorney in St. Louis and a member of The Levison Group, which provides columns for this newspaper. He may be reached at [email protected].