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LIVE FROM THE HEADLINES

Fox News Sues Al Franken

Aired August 12, 2003 - 20:22   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

WOLF BLITZER, CNN ANCHOR: After slapping a picture of Bill O'Reilly on the cover of his new book under the word lies, Al Franken probably wasn't counting on getting a fruit basket from the FOX News Channel but the political satirist may not have expected a lawsuit either.
The network has sued Franken over the title of his book "Lies and the Lying Liars who Tell Them," a fair and balanced look at the right. The case hinges on FOX's trademark of the phrase "fair and balanced."

CNN Analyst Jeffrey Toobin is joining us here in New York. This is an interesting legal case. FOX did put out a trademark, took a trademark years ago on the phrase "fair and balance."

JEFFREY TOOBIN, CNN LEGAL ANALYST: Absolutely. You can trademark a phrase. "The New York Times" all the news that's fit to print, Coke, it's the real thing, I mean there are lots of phrases that are trademarked but you don't get sole and exclusive use of a trademark when you trademark something. A trademark is a limited right and other people can use the words under a lot of circumstances.

BLITZER: But in this kind of a case, the FOX lawyers looked at the cover. They see Bill O'Reilly's picture. They see the words "fair and balanced." Could that confuse the public out there into thinking this is a book that has the sanction, the authority of the FOX News Channel?

TOOBIN: You know I don't think the public is quite that stupid. I mean here you have a book that is obviously an attack on FOX News. There is no conceivable way that I think anyone could be confused into thinking this is an authorized FOX News product and that is the whole reason for trademarks to have a -- so that people aren't confused. No one could be confused by this.

BLITZER: Let me read a statement put out by Al Franken.

TOOBIN: Right.

BLITZER: "I'd like to thank FOX for all the publicity. As far as the personal attacks go, when I read "intoxicated or deranged" and "shrill and unstable" in their complaint, I thought for a moment I was a FOX commentator. And, by the way, a few months ago, I trademarked the word "funny." So when FOX calls me "unfunny," they're violating my trademark. I am seriously considering a countersuit." He's taking it pretty frivolously. TOOBIN: Well, and you know what I think Franken's right to take it frivolously. I think it's really an absurd lawsuit. I think, you know, they're angry at this guy. They're trying to bully him with these tactics. They're giving him untold publicity. I just think it's silly.

BLITZER: What about the publisher Penguin, are they going to be frivolous about it?

TOOBIN: I think they are probably the happiest people around because they've got unlimited publicity. They've got, you know, we certainly wouldn't be talking about Al Franken's book tonight if this lawsuit didn't exist and, you know, it will be inconvenient for them to hire lawyers and defend this case but trademark exists to protect consumers from confusion.

BLITZER: One quick question. You know, candy that all of us like "Good and Plenty."

TOOBIN: Right.

BLITZER: They have a trademark for that.

TOOBIN: Absolutely.

BLITZER: We just can't go out and call ourselves good and plenty, can we?

TOOBIN: You can start calling your show good and plenty if you like. You just can't call your candy good and plenty, so keep that in mind, Wolf, for your candy.

BLITZER: Well, one important note, our producers did call FOX.

TOOBIN: I called. We all tried.

BLITZER: And we asked for some reaction and we got nothing.

TOOBIN: You know why because we're fair and balanced. Come after me, go ahead.

BLITZER: Jeffrey Toobin on the edge with us here tonight.

TOOBIN: Absolutely.

BLITZER: Thanks very much, Jeff.

TOOBIN: OK.

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