Fox News: Unfair and Unbalanced

By Don Hazen, AlterNet. Posted July 18, 2004.

As Robert Greenwald's film "Outfoxed" generates controversy and acclaim, AlterNet joins MoveOn.org in a major campaign to challenge Fox as a partisan news channel – a 24/7 commercial for a political party, and an insult to America's media consumers. And we're going to need your help to carry the battle forward.

Is the Fox News Channel about to lose its "Fair and Balanced" trademark? Nothing is more likely to make a serious journalist, or a concerned news consumer, gag than hearing the Fox News Channel smugly refer to itself, day after day, as being "fair and balanced." But what really rubs salt in the wound is this: Fox has actually registered those three words – "fair and balanced" – as its signature trademark. Does this mean that all journalists and news organizations in the world are legally forbidden to use those words – not only to describe themselves – but for virtually any purpose whatsoever?

As if to drive the point home, in August of 2003, Fox brought suit against the humorist Al Franken and his publisher, EP Dutton/Penguin, for allegedly infringing on Fox's three-word trademark. The offense? Franken's book, Liars and the Lying Liars Who Tell Them (which attacked Fox), was subtitled "A Fair and Balanced Look at the Right." However, when Fox appealed for a preliminary injunction, U.S. District Judge Denny Chin refused the request – adding that he found Fox's lawsuit to be "wholly without merit, both factually and legally." The judge also said that Fox's right to such a trademark was not very strong, suggesting that, if challenged, it might well be revoked. "From a legal point of view," said Judge Chin, "I think it is highly unlikely that the phrase 'fair and balanced' is a valid trademark. I can't accept that that phrase can be plucked out of the marketplace of ideas and slogans." A few days later, instead of proceeding to trial – as was its right – Fox abruptly decided to drop its lawsuit against Franken. There was no follow up to Judge Chin's suggestion. So Fox was able to retain its trademark registration – and the right to continue using it to mischaracterize its news product as "Fair and Balanced." But perhaps not for very much longer.

The Independent Media Institute ( IMI), parent organization of AlterNet, filed a legal challenge with the U.S. Trademark Office that seeks to strip Fox of its "Fair and Balanced" trademark registration on the grounds that it was "merely descriptive" (making it ineligible for trademark registration) as well as "false and misleading." AlterNet (which is a project of the Independent Media Institute, a nonprofit organization dedicated to strengthening and supporting independent journalism) filed its challenge with the U.S. Trademark Office on December 23, 2003, just under the wire – only hours before the clock was scheduled to run out on Fox's "contestability period," which is the legally mandated 5-year window during which a trademark registration can be challenged. After that period the right to use the trademark becomes "incontestable" and virtually invulnerable, and its holder is entitled to prevent anyone else from using it, under penalty of legal prosecution, virtually forever, and regardless of whether the trademark was legitimately registered or not. Now, for the first time, AlterNet is making that legal challenge public. We are also joining MoveOn.org in launching an international campaign to confront Fox News in its blatant efforts to use the airwaves for political gain and to promote right-wing politics. This weekend, MoveOn.org sponsored more than 2,700 house parties to view "Outfoxed," Greenwald's documentary, and included dialogue with Greenwald and MoveOn.org's leadership and this writer to announce our legal challenge to Fox.

Wes Boyd of MoveOn.org told the more than 30,000 people listening and many watching over the Web: "People are steamed about the media. People get it. Washington has never seen the kind of outrage that they heard last year from citizens around the country about media consolidation. And Fox News, as Robert has shown in this film, is Enemy #1 in the undermining of democracy – they're partisan, they're bullies, they lie, they'll do anything for a buck, they don't even know what journalism is, and then they claim to be 'Fair and Balanced.' So we're going after Fox. This is just the beginning of a campaign to rebrand Fox "Unfair and Unbalanced," so that people know what they're watching. This campaign is a warning to any other media outlets, if they're thinking that the Fox model is something to copy. It isn't. Try journalism instead. Try serving the public interest."

Don Hazen is the Executive Editor of AlterNet.

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