How can I file an amicus curae in Fox/Franken case.

[Pab Sungenis]

I would like to file an amicus curae in the Fox/Franken case over "Fair and Balanced."

In 2000, I launched what was known as the Low-Budget Radio Network. When my trademark application was denied, it was because the trademark office said that "Low-Budget Radio" was too generic and too common a term to be trademarked.

I maintain that "fair and balanced" is too generic to be a trademark. I'm sure that a Lexis/Nexis search could find lots of examples of "fair and balanced" in news stories prior to 1996, when the Faux News Channel launched; it only took 20 in five years for them to deny "Low-Budget Radio Network" a trademark.

A trademark given illegally, or improperly, cannot be enforced and so Franken should be in the clear.

Barring that, can I suggest that Franken change the subtitle to "They Distort, I Deride?" :)

[IndianaGreen]

1. Contact a lawyer

Check the ABA listing for your state.

[TreasonousBastard]

5. Yes, first find a lawyer...

and be prepared to pay a bundle for a good one.

Or even a bad one in this sort of suit.

Filing fees and copying costs alone are a killer.

And then the appeals...

[PeteC]

2. Unenforceable

I believe it is also unenforceable if the phrase is allowed to be repeated over and over with no protest from the trademark holder. Anybody know?

[AP]

8. Yes, it can become a generic term if the owner doesn't

protect it. This almost happened to Xerox.

Nonetheless, the best argument for franken is that he isn't using the term to sell something confusingly similar to the product to which Fox attaches "Fair and Balanced".

If franken started a 24 hour news network and called it fair and balanced, Fox would have a better argument. He's using the term to comment publicly on the news organization and you can't use trade mark law to stiffle commentary on your product (you can only use it stop people from confusing the public about the identity of a product).

[goobergunch]

3. Unenforceable lawsuit

I'm holding a copy in my hands right now...the cover says "A Fair and Balanced Look at the Right".

[Jacobin]

4. File a motion in the proceeding asking that you be allowed to file an

amicus brief. Send along a proposed order for the judge to sign allowing you to file the brief.

If the case is pending in federal court and that court uses Public Access Court Eletronic Records (PACER), I have a subscription and pass word and I'll help you get it filed.

message me when you find out where the case is pending.

[Stephanie]

6. Got this in email - the Author's Guild is filing

From the Authors Guild:

We need your further help in compiling our list of book titles
containing trademarked terms for a brief we're submitting to federal
district court in Manhattan tomorrow. That brief will pertain to the
free speech issues inherent in Fox News v. Penguin and Franken, in
which Fox claims Al Franken infringed its trademarked slogan by using
"fair and balanced" in the subtitle of his upcoming book.

Yesterday, as part of our request for permission to brief the court in
this case, we submitted a preliminary list of book titles containing
trademarked words or phrases. That list appears at the end of this
e-mail (it's also attached as a Word document, which may be easier to
read). Most of these titles were suggested by members and others at
the website we've created about trademark and free speech matters --
http://members.authorsguild.net/trademark/disc.htm.

We'd like to provide a more comprehensive list of such titles in
tomorrow's brief. We believe this is an effective way of making our
point to the court that the use of trademarked terms in book titles is
common and does not generally confuse the public into believing that
the book is in any way the product of the trademark holder. No
reasonable person would believe that "Where's the Beef? The Mad Cow
Disease Conspiracy," by David Lamar Cole is the product of the Wendy's
hamburger chain, for example. Likewise we don't believe readers are
likely to believe that Mr. Franken's book is the product of Fox News.
This sort of confusion -- the likelihood of passing off your product as
the product of someone else -- defines trademark infringement.

We think Mr. Franken and Penguin will win this case, but the outcome is
never certain in litigation. Also, the manner in which they win is
important, since this case may well set important precedent. We'd like
as strong a decision as possible on the side of free expression.

To suggest titles for our list, please visit
http://members.authorsguild.net/trademark/disc.htm and scroll down a
bit.

Thanks for your help. Feel free to pass this message on to others.

-----------------------------------------------------------------------------------------------------
A Short List of Book Titles Containing Trademarked Words and Phrases

Amusement Parks & Retail Outlets
Down and Out in the Magic Kingdom by Cory Doctorow
Goodbye, Mickey Mouse by Len Deighton
How Wal-Mart Is Destroying America and the World and What You Can Do
about It by
Bill Quinn
The Magic Kingdom by Stanley Elkin
Team Rodent: How Disney Devours the World by Carl Hiaasen and Peter
Gethers
Up against the Wal-Marts: How Your Business Can Prosper in the Shadow
of the Retail
Giants by Don Taylor and Jeanne Smalling Archer

Automobiles
Cadillac Desert: The American West and Its Disappearing Water by Marc
Reisner
From a Buick 8 by Stephen King
The Lexus and the Olive Tree: Understanding Globalization by Thomas
Friedman
More Than a Pink Cadillac: Mary Kay Inc.'s Nine Leadership Keys to
Success by Jim
Underwood
Reading Don't Fix No Chevy's: Literacy in the Lives of Young Men by
Michael W.
Smith and Jeffry D. Wilhelm
Sheep in a Jeep by Nancy E. Shaw and Margot Apple (Illustrator)

Clothing and Cosmetics
Because I'm Worth It (Gossip Girl Series Vol. 4) by Cecily von Ziegesar
(October 2003)
The Devil Wears Prada by Lauren Weisberger
Does She or Doesn't She? By Alisa Kwitney
Just Do It: The Nike Strategy in the Corporate World by Donald Katz
The Night of the Mary Kay Commandos: Featuring Smell-O-Toons by Berke
Breathed
Shiny Adidas Tracksuits and the Death of Camp: And Other Essays by
Might Magazine
(Publisher)
Soy la Avon Lady and Other Stories by Lorraine Lopez

Food and Beverages
Breakfast of Champions by Kurt Vonnegut
Coke Machine Glow by Gordon Downie
The Destroying Angel: Sex, Fitness, and Food in the Legacy of
Degeneracy Theory,
Graham Crackers, Kellogg's Corn Flakes & American Health History by
John William Money
The Electric Kool-Aid Acid Test by Tom Wolfe
Elvis, Jesus and Coca-Cola by Kinky Friedman
Everybody's Studying Us: The Irony of Aging in the Pepsi Generation by
Irene Paull
Have It Your Way by Vicki E. Walton
Looking for Mr. Goodbar by Judith Rossner
On the Road with Poppa Whopper by Marianne Busser and Ron Schroder
Where's the Beef? The Mad Cow Disease Conspiracy by David Lamar Cole

Media Organizations
All the Math That's Fit to Print: Articles from the Manchester Guardian
by Keith J.
Devlin
All the News Is Fit to Print: Profile of a Country Editor by Chad
Stebbins
All the Views Fit to Print: Changing Images of the U. S. in 'Pravda'
Political Cartoons,
1917-1991 by Kevin J. McKenna
Bias: A CBS Insider Exposes How the Media Distort the News by Bernard
Goldberg
This Boy's Life: A Memoir by Tobias Wolff
Television News and the Supreme Court: All the News That's Fit to Air?
By Elliot E.
Slotnick and Jennifer A. Segal

Pharmaceuticals
Better than Prozac: Creating the Next Generation of Psychiatric Drugs
by Samuel H.
Barondes
Carp Fishing on Valium by Graham Parker
A History of Psychiatry: From the Era of the Asylum to the Age of
Prozac by Edward
Shorter
In Pursuit of Happiness: Better Living from Plato to Prozac by Mark
Kingwell
Listening to Prozac: The Landmark Book about Anti-Depressants and the
Remaking of
the Self by Peter D. Kramer
Plato, Not Prozac! Applying Eternal Wisdom to Everyday Problems by Lou
Marinoff
Potatoes Not Prozac by Kathleen DesMaisons
Prince Valium by Anton Holden
Prozac on the Couch: Prescribing Gender in the Era of Wonder Drugs by
Jonathan Metzl
Prozac Highway by Persimmon Blackbridge
Prozac Nation: Young and Depressed in America by Elizabeth Wurtzel
Valium, Librium and the Benzodiazepine Blues by Jim Parker

Technology
Polaroids from the Dead by Douglas Coupland
Polaroid Man by Michael Cormany

Comic Book Characters
Barry Bonds: Baseball Superman by Steven Travers
Hollywood Kryptonite: The Bulldog, the Lady and the Death of Superman
by Sam
Kashner and Nancy Schoenberger
The Lone Ranger and Tonto Fistfight in Heaven by Sherman Alexie
The Superman Syndrome: Finding God's Strength Where You Least Expect
It by Jack
Kuhatschek

[AP]

7. Check the rules of the court in which the Franken case is filed

That should let you know.