Friday, August 15, 2003

Some Fair and Balanced Commentary

Fox News is not, metaphor aside, run by or about foxes. "Fox" is what lawyers call an arbitrary trademark: the word "fox" has no special connection to news, and thus is a fairly strong trademark. If I were to create a news company, getting even close to "fox" (Foxy News?) would likely trigger a trademark suit which I would rightly lose. Their trademark is now strong enough that it would even likely beat a news company that was in fact about foxes ("Geoff's Fox News"). I'll leave the possibility of a news company run by foxes as an exercise for the reader.

Fair. Balanced. Those are words that describe a news service (although not necessarily Fox's). It is extraordinarily difficult -- or at least by statute and case law it ought to be -- to defend such descriptive trademarks; they verge on being entirely generic. (Of course, Fox News is owned by News Corp, an exceedingly generic name itself. It's a wonder they haven't sued the other news companies.) When Fox News says they are being "Fair and Balanced," they are describing attributes of their news broadcasts, and in terms that are central to the idea of a news broadcast. To assert proprietary ownership over "fair" and "balanced" is to give Fox News an illegitimate control via trademark law over key competitive aspects of the field. The ideas of "fair" and "balanced" are too central and important to the market for news for any company to have ownership. (They would likely counter that it is the combined phrase "fair and balanced." Possibly; would they have gone after Franken if he had said "balanced and fair"?) Compare this to a notional news company whose motto was "Garbled and Misleading." That would be a much stronger trademark, since those terms are not usually associated with news broadcasts (except, of course, Fox).

Trademark law really needs to be changed in two important ways. One, the fact that you can lose your trademark if you allow any other uses of it creates an absolutist regime. Why not water this down? Secondly, mottos or descriptive phrases really deserve far less protection than brands. It's not the Fair and Balanced News Show, it's Fox News. "Fair and Balanced" is a secondary, descriptive by intention and so shouldn't be treated as equivalent to trademarks that do deserve protection.