Analysis: The Filings...One is DOA, the other is not

The "false advertising" charges against Fox appear to be circling the drain. But that's not the only issue before the Feds. We take an "even-handed and impartial" look at what could be a much closer call.

CableNewser has posted a statement by the chairman of the FTC, reacting to the "false advertising" claim, and it looks pretty damning:
There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.

We said that this was little more than a publicity stunt, and that it had little chance of succeeding. It appears that may well be the case.

But while the "false advertising" claim may be Dead on Arrival, the challenge to the trademark by Alternet is a different kettle of fish. A challenge doesn't say "you can't use the phrase fair and balanced", it says that you can't trademark it, and hence prevent others from using it. Part of Alternet's argument is that it is misdescriptive--but this raises the same issues as the "false advertising" charge and so will get short shrift.

The meat of their argument is that fair and balanced is a weak trademark; in fact, they claim it is "generic" (the weakest possible category and unworthy of trademark protection). This is silly: generic descriptors are things like "telephone", "television", etc. "News" would be generic; fair and balanced is not generic.

Alternet's fall back position is that the phrase is merely "descriptive"; this is a more interesting question because FNC will argue that it is more than descriptive, it is "suggestive" (and therefore merits a higher standard of protection). Descriptive marks are obvious representations of the product: an example often given is "tubeless" to describe a computer monitor. Suggestive marks are less direct and require some thought or perception to associate with the product, like the web browser "Safari".

There is a fine line between the two categories, and fine lines always make for uncertainty. But it is an important distinction, because it's a lot easier to cancel a trademark that is merely descriptive than one that is suggestive.

The other point of interest is the claim by Alternet that they are "damaged" by the inability to use the phrase fair and balanced. Usually someone tries to use a phrase, gets shot down by the trademark owner, and then files for cancellation. But Alternet is claiming that they have been "damaged" without Fox ever having tried to stop them from doing anything.

We don't think Alternet's request to cancel the trademark will be successful (in our view fair and balanced is more suggestive than descriptive), but it's clearly a stronger case than the "false advertising" charge. If Alternet did prevail, the end result would be that FNC would have to remove the (R) from the end of the phrase. And Alternet could say their site was "fair and balanced". (Which brings us back to false advertising...)

posted: Mon - July 19, 2004 at 09:46 PM       j$p  send