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Google Asks Booble To Cease And Desist
cosmodemonic writes "The folks at Search Engine Journal have the low-down on a cease and desist order that Google has sent to the porn search engine/Google parody Booble. It seems that, although Booble is claiming to be a parody (which is protected under law), Google is flexing its muscle because of the marketability of the parody." Search Engine Journal makes the reasonable suggestion: "Recent rulings may favor Google in the case, since Booble may be trying to profit from the marketability of the parody."
But how do you search for porn? That was my problem with Booble: I couldn't figure out a good way to use it. I prefer the sites that collect gallery links or let you browse galleries, like Sleazy Dream and Hard Pics 4 You..
:)
(Posted Anonymously, of course
Booble is (was ? ) simply worthless as a pr0n engine.
What, an "adult search engine" that returns exactly 0 matches for the word "bondage" ?
I mean, come ON ! Even altavista picture search does better !
(Uh, hope my supervisor doesn't read slashdot too much...)
Thomas Miconi
Here it is from booble.com site:
January 28, 2004
Dear Trademark Enforcement Team,
We are intellectual property counsel to Guywire, Inc. This letter responds to your e-mail message of January 20, 2004 to our client via domains by proxy.
As your communication recognizes, our client adopted and uses the BOOBLE and booble.com designations to parody the Google web site. Our client's web site is in fact a successful parody, which simultaneously brings to mind the original, while also conveying that it is not the original. See, e.g.,Jordache Enters., Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1486 (10th Cir. 1987) (finding no likelihood of confusion between LARDASHE for oversized jeans, despite its obvious similarity with, and parody of, the well-known JORDACHE mark for jeans). Cf. People for the Ethical Treatment of Animals v. Doughney, 263 F. 3d 359 (4th Cir. 2001) (finding a domain name parody was unsuccessful because Internet users had to view the web site before they were able to discover that it was not the original). Obviously, the Booble web site brings to mind the Google web site, at the same time that it underscores its unique identity as a parodic adult search engine.
In trademark law, parody is a defense to trademark infringement. Eveready Battery Co. v. Adolph Coors Co., 765 F. Supp. 440 (N.D. Ill. 1991) (holding that a commercial advertisement of a well-known actor in a bunny outfit, banging a drum, was an effective parody of the plaintiff's mechanical toy rabbit advertising character). In the present case, consumers are highly unlikely to be confused as to the source of services for several reasons, including the following:
the domain names are entirely different;
the BOOBLE web site searches only provide content related to Adult web sites, including TGP sites, Adult stores, and Adult-related products like browser cleaners, pop-up filters, etc.; and
the BOOBLE mark is distinct from the GOOGLE mark in that it differs in sound, appearance, commercial impression, and other relevant aspects:
it features a woman's chest;
it uses the phrase, 'The Adult Search Engine;'
it posts a warning that the web site contains explicit content; and
it disclaims any association with Google.com.
Neither does the Booble trademark dilute Google's mark. First, the capacity of the GOOGLE mark to identify and distinguish its services is unchanged by Booble's use of its mark. See, e.g., Moseley v. V Secret Catalogue, Inc., 537 US 418 (2003) (requiring proof of actual dilution). In addition, Booble does not tarnish the Google mark. See, e.g., L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir. 1987) (finding that a sexually explicit parody of appellee's catalog did not constitute tarnishment). Moreover, Booble's web site is an adult search engine, not 'a pornographic site,' as referred to in your letter. In fact, entering the terms "porn" and "sex" in the Google search engine return 98,400,000 hits and 269,000,000 hits, respectively, while entering these same terms in the Booble adult search engine return 268 hits and 291 hits, respectively. Therefore, the Google mark - which has a longstanding association with pornographic terms and material - is obviously not tarnished.
In your letter, you refer to the Supreme Court decision in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (holding that a commercial parody may qualify as a fair use and is not presumptively unfair). As you may have recognized, this is a copyright case. Although some analytic similarities exist between copyright and trademark parody cases, Google neither claims copyright infringement in its letter, nor is any relevant portion of its web site copyrightable. Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 815 (1st Cir. 1995) (holding that literal copying of a computer command hierarchy does not constitute copyright infringement because it is an uncopyrightable method of operation). Therefore, while we feel that Campbell adequately supports the legality of Booble's paro
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