Actually, trademarks and service marks, when used in conjunction with product names in advertising in the marketplace are considered as advertising claims. The same is true of product names. That they've trademarked the phrase doesn't change its use as an advertising claim.

Further, how Fox interprets the phrase is irrelevant in a class action lawsuit (which the action you mentioned was not). How the judge interprets the phrase is the relevant point, and said judge is required to determine what the public would reasonably expect to believe was meant, not what Fox claimed.

As for point three -- as aggravating as that point was, it is not germane to a consumer advocacy action. Different legal points, different precedents. They would need to come up with different evil juju for these purposes.