Now for another unfavorable comment about the profession.
The idiots who filed Fox v. Franken would, in Illinois, be required to turn themselves in to the Attorney Registration and Disciplinary Commission for filing a lawsuit without a good faith basis in fact or law for the purpose of harrassment (or another improper purpose). However, New York does not impose such a requirement on counsel. This may explain a great deal. It may explain nothing, too, as it is highly doubtful that the ARDC would act on such an action.
"Fair and balanced" was used in advertising as a description of news reporting during the Watergate era, long before there was a Fox News. On its face, then, the mark is not registrable. Given the various boycotts among politicians going around these days, it is not even an accurate descriptor (of any of the major news sources, print or media, let alone Fox), and thus cannot acquire secondary meaning.
Then there's the whole issue of exemplars. And the Victoria's Secret decision. It seems pretty clear that inadequate consideration was given to these issues; one might even question whether they were considered at all, but at the hourly rates no doubt paid to prepare the complaint somebody would have padded the bill by noting review of them.
Perhaps the law is an ass. What, then, does that make those who try to use (loop)holes?