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Google Asks Booble To Cease And Desist 445

Posted by simoniker
from the toodle-oo dept.
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."
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Google Asks Booble To Cease And Desist

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  • by Bandman (86149) <bandman AT gmail DOT com> on Thursday January 29, 2004 @08:40AM (#8122586) Homepage
    I hope Google adds this to their search features. Who wouldn't want to harness the power of Google for searching pr0n?
  • by Karl Cocknozzle (514413) <kcocknozzle&hotmail,com> on Thursday January 29, 2004 @08:41AM (#8122591) Homepage
    Recent rulings may favor Google in the case, since Booble may be trying to profit from the marketability of the parody.
    ...Then we'll have to give "Weird Al" Yankovic the electric chair.

    Shame, I liked Even Worse a lot when I was a boy...
    • by gvc (167165) on Thursday January 29, 2004 @08:45AM (#8122626)
      Yankovic once said in an interview that he acquires permission to use all material he parodies.
      • I thought he asked for permission to do videos, but not just to use the songs. I'm not sure the average singer/band would say yes to begin with; I have no idea how he could pull off a polka if he always asked.

        Not trying to start a war over Amish Paradise, although that vid rocked.
        • by the_duke_of_hazzard (603473) on Thursday January 29, 2004 @08:55AM (#8122675)
          Looks like he does have to get permission (as you'd expect). Yahoo news [yahoo.com]
          • That link doesn't work for me, but..

            I wouldn't expect him to have to get permission, as it is a parody. Other parodies (to show it's ridicules to force them to ask for permission): Political cartoonists, cartoonists, The National Enquirer, The Daily Show, 75% of acts and skits on Comedy Central (Chappell's show (sp?)), every other skit on SNL/MAD and one in ten The Simpsons episodes/scenes for starters.

            Was Schwarzenegger consulted on Hanz and Franz?
          • by GeekLife.com (84577) on Thursday January 29, 2004 @09:52AM (#8122979) Homepage
            He didn't do the video because he desires permission of the authors. Nothing in that article states that he's legally disallowed from making the video, he's just standing by his (previously mentioned) judgment that it's better for artist relations if he's not going against artists' wishes.
        • by Anonymous Coward on Thursday January 29, 2004 @08:58AM (#8122691)
          No, he pays royalties for songs as well. You are recalling the contraversy over his parody of an Eminem song. He was given permission to make the song, thought he had permission for the video, then had the video permission revoked in the middle of filming.

          Amish Paradise was the one where Coolio publicly stated he hadn't given permission, whereas Weird Al said that they had worked it out up front with his label, and had been sending in royalty checks. Apparently Coolio's label hadn't let him in on that.

      • by Pete (2228) on Thursday January 29, 2004 @08:54AM (#8122671)

        He only does that to be nice and polite. He's not legally obliged to.

        Pete.
        • by Robotech_Master (14247) on Thursday January 29, 2004 @12:04PM (#8124082) Homepage Journal
          Another somewhat (in)famous parody, Mark Jonathan Davis's "Star Wars Cantina," can't be sold [ideatown.com] (though this hasn't stopped it from getting a lot of radio airplay) due to Barry Manilow's lawyers threatening to sue. Even though it's a parody and protected under law, it's the old problem of the expense of a lawsuit trumping the rightness of it. He's taking donations for a legal defense fund against the time he might be able to try it anyway.
    • by ericspinder (146776) on Thursday January 29, 2004 @08:50AM (#8122652) Journal
      ...Then we'll have to give "Weird Al" Yankovic the electric chair.
      From the Weird Al FAQ" [weirdal.com]
      Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it's important to maintain the relationships that he's built with artists and writers over the years. Plus, Al wants to make sure that he gets his songwriter credit (as writer of new lyrics) as well as his rightful share of the royalties.
      So I think that Weird Al is safe.
      • But Al is not REQUIRED to do so. Mad Magazine [madmag.com] established the right to parody long ago.
        • Absolutly, that's a great link, it was futher tested by Hustler mag (I don't want to search for that link right now. As I remember it was featured in that movie about Larry Flint. The (U.S.) Supreme Court ruled in favor his parody of a liquor add featuring Jerry Falwell.

          In all fairness, Google might have a case. I doubt if the Hustler ad would have been protected speach, if the ad was for a real service which Hustler was trying to make money on, but used the "form and style" of someone else's copyrighte

      • by mav[LAG] (31387) on Thursday January 29, 2004 @10:30AM (#8123223)
        My favourite Weird Al quote of all time (from here [laughbreak.com]):

        Q: Hey Al!!!!! What do u think about Napster? I just want to know if you approve.

        A: I have very mixed feelings about it. On one hand, I'm concerned that the rampant downloading of my copyright-protected material over the Internet is severely eating into my album sales and having a decidedly adverse effect on my career. On the other hand, I can get all the Metallica songs I want for FREE! WOW!!!!!
    • by Talez (468021) on Thursday January 29, 2004 @09:00AM (#8122695)
      It's one thing to infringe copyright with additional creative material to create a parody.

      It's another thing to do a 5 minute knock off of a popular website and stick a giant adult store behind it.
    • People seem to be trying to counter your claim via the fact that Weird Al always tries to get permision before making a parody. However there are a lot of other parodies getting sold out there, and i doubt all of the creators are as curteous as Weird Al.

      Spaceballs, Bored of the Rings, Barry Trotter, etc.

    • by JCCyC (179760) on Thursday January 29, 2004 @09:58AM (#8123014) Journal
      Not to mention MAD Magazine. Hell, they "profit from the marketability" of parodies since the dawn of time.

      Now you're forbidden from telling jokes for money?
    • From the letter: "Your web site improperly duplicates the distinctive and proprietary overall look and feel of Google's website, including Google's trade dress and the GOOGLE logo."

      Overall look and feel is not a valid claim. See the old Apple vs Microsoft issue. I like google, but I'm not sure I'd like it if they win this. Is "Booble" likely to be confused with "Google"? Not likely.

  • Movies (Score:5, Interesting)

    by CGP314 (672613) <CGPNO@SPAMColinGregoryPalmer.net> on Thursday January 29, 2004 @08:43AM (#8122606) Homepage
    What about parody movies like space balls? Can Lucas sue them because they made money?

    --
    In London? Need a Physics Tutor? [colingregorypalmer.net]

    American Weblog in London [colingregorypalmer.net]
    • Re:Movies (Score:5, Insightful)

      by JaredOfEuropa (526365) on Thursday January 29, 2004 @09:07AM (#8122727) Journal
      What about parody movies like space balls? Can Lucas sue them because they made money?
      That's not the point, despite the fact that it came up in the article. In the case of Spaceballs, and the parodies by Weird Al for example, the works themselves are the parody. In the Booble case, the content is not intented as a parody but as a 'serious' service that they hope to exploit profitably.

      The Booble people hope to capitalise on the marketability of the name; to claim that the name is a parody is a sad excuse. I could, for example, start manufacturing cars, call the company Dorkswagen, and claim that it's 'only a parody of Volkswagen' when challenged about the similarity of the names.
      • Re:Movies (Score:4, Insightful)

        by ajs (35943) <ajs AT ajs DOT com> on Thursday January 29, 2004 @09:40AM (#8122902) Homepage Journal
        The line I would draw (and this probably intersects the law at exactly zero points) is this: does the new work take market-share away from the original due to the original's name-recognition. If you are really parodying, there should be little or no intersection. If you are labeling a competing product with a recognizable play on the competition's name in order to attract business... well, screw you.
      • Re:Movies (Score:3, Insightful)

        by Lord Kano (13027)
        The Booble people hope to capitalise on the marketability of the name; to claim that the name is a parody is a sad excuse. I could, for example, start manufacturing cars, call the company Dorkswagen, and claim that it's 'only a parody of Volkswagen' when challenged about the similarity of the names.

        Legally, I believe you'd have a strong case. Financially you'd be dead in the water. Only a DORK would drive a Dorkswagen.

        It follows that people looking for BOOBS would use BOOBLE!

        LK
      • MikeRoweSoft (Score:2, Insightful)

        by theslashdude (656154)
        I think a good example of this would have been Mike Rowe calling his domain name a parody of the Redmond company.
    • Re:Movies (Score:2, Informative)

      by 91degrees (207121)
      Nope. He might be able to if they called it "Star Wars: Episode 7", though. Especially if the parody was not so obvious. People might consider Booble to be part of Google since Google has sites with names such as Froogle.

      It' just consumer protection, and defending their good name. People might find Booble a poor quality site, and this would affect Google negatively.
    • Re:Movies (Score:3, Insightful)

      by teridon (139550)
      Did you RTFA?

      For a work to constitute a parody, it must use some elements of a prior author"s composition to create a new one that, at least in part, comments on the original author"s works. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569. Your website does not comment on the Google website at all; it merely uses the Google look and feel and a similar name for a search engine.

      SpaceBalls clearly is a new work, and, in part, comments on the original author's works. Does the Booble website make jabs a

      • "Your website does not comment on the Google website at all"

        did you see the link at the bottom of booble labled 'sense of humor'

        • Re:Movies (Score:3, Insightful)

          by Murdock037 (469526)
          didd you see the link at the bottom of booble labeled 'sense of humor'

          Labeling the site a parody does not make it so.

          This case is fairly cut and dry, but Booble is trying to nudge it into a gray area because of the legal protection and goodwill afforded parodies that they otherwise wouldn't receive.

          Unfortunately, this arbitrary label doesn't change the fact that they are a business, looking to profit, and doing so by taking advantage of Google's good name and trademarked logo and design.

          If you think Bo
    • Re:Movies (Score:2, Informative)

      by dat00ket (249468)
      But for a perhaps more appropriate comparison, George Lucas did sue Star Ballz (not safe for work) [starballz.com], a cartoon porn parody of Star Wars.

      And as a slashdotting attempt to punish Google for suing people, here's a regarding the Star Ballz lawsuit. [google.se]

  • Bummer. (Score:5, Funny)

    by inode_buddha (576844) on Thursday January 29, 2004 @08:44AM (#8122614) Journal
    Pun intended. See topic.
  • by bryhhh (317224) on Thursday January 29, 2004 @08:44AM (#8122618)
    Why is there no 'I'm feeling Horny' button.
    • They choose one at random with Javascript:

      var prompts = ['I am feeling animated!', 'I am feeling cheap!', 'I am feeling confused!', 'I am feeling lucky!', 'I am feeling nostalgic', 'I am feeling playful'];
    • by Anonymous Coward
      No, you just need to change it to read, "I want to get lucky"
  • From the C&D (Score:3, Insightful)

    by Anonymous Coward on Thursday January 29, 2004 @08:44AM (#8122623)
    Your web site is a pornographic web site.

    That doesn't seem right. It's no more pornographic than google is.
  • by MaestroSartori (146297) on Thursday January 29, 2004 @08:45AM (#8122628) Homepage
    Like Spaceballs, Hot Shots, etc? Since when was making money off of a parody such a bad thing, as long as there is no mistaking it for the original?
    • by WegianWarrior (649800) on Thursday January 29, 2004 @09:04AM (#8122709) Journal

      Since when was making money off of a parody such a bad thing, as long as there is no mistaking it for the original?

      The point of the C&D letter, as I read it, is that Google's lawyers don't believe that Booble is a parody - but rahter that they use the "look and feel" of Google on their searchengine. To qoute: "We have recently become aware of your website at http://www.booble.com (the Domain Name). This Domain Name is confusingly similar to the famous GOOGLE trademark. Your web site is a pornographic web site. Your web site improperly duplicates the distinctive and proprietary overall look and feel of Google's website, including Google's trade dress and the GOOGLE logo." and "We note that you have given interviews to the press in which you state that you intended booble.com to be a parody. We dispute your assertion that your website is a parody. For a work to constitute a parody, it must use some elements of a prior author's composition to create a new one that, at least in part, comments on the original author"s works. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569. Your website does not comment on the Google website at all; it merely uses the Google look and feel and a similar name for a search engine.". So, if the Booble site _isn't_ a parody, it's perfecly allright to send them a C&D-letter. If it _is_ a parody, they are protected under free speach.

      Question is... who decide if something is a parody or not?

      • I think google has a real uphill battle on this one.

        First the domain can not even be thought of a simular booble and google .. what two o, an l and an e make it the same?

        The graphic having a color pattern makes a trademarked logo. Remember google changes that graphic all the time. They are trading marking each image, so... they have already diluted the graphic.

        Look and Feel as been the issue of many law suits between MS and others... guess who has won?

        Wrapping in a parody flag may be the best way to
    • This isn't really equivalent to those movies, because the search results themselves aren't a parody.

      The equivalent here would be me creating, not Spaceballs, but a ordinary SF action-adventure flick and titling it "Star Trek Wars: Rise of Darth Kirk".

      Sure, my title is a parody, but my movie isn't, and I'm using Star Trek/Wars IP to promote my non-parody movie. That isn't the same thing as what Spaceballs does.

      And there is plenty of room for confusion, anyway. Google uses a slight variant of its name fo
  • by Anonymous Coward on Thursday January 29, 2004 @08:45AM (#8122629)
    A search engine, like google, but that finds porn? Why is there no permanent link to this from the slashdot main page?
    • Unfortunately, it doesn't appear to be a "search engine". Try searching for likely subjects like "Pamela" and you get NO results. They "suggest" searching for "porn", that gives you a list of rated websites. I'd guess that's the only search that works -- unless anyone has more patience than me wants to try. It's really just a hand-compiled list of porn sites.
    • Why is there no permanent link to this from the slashdot main page?
      Maybe yhey'll change the OSDN Personals link to go there in the next update.
  • Is google afraid that people would mistake booble for the real thing?
  • I hope they lose (Score:3, Insightful)

    by twitter (104583) on Thursday January 29, 2004 @08:48AM (#8122643) Homepage Journal
    As much as I hate porn and as much as I like Google, I value freedom more and hope Google loses. Paradoy DESERVES to make money, it's creative. When you get to the point that reasonable men can dissagree, you have left the realm of imperical fact and entered the world of faith where government should not have a hand. How much creativity is involved with Booble? Close to zero and it's mostly repulsive and it did not come from Google.

    • by lewp (95638)
      You hate porn?

      Step away from the computer...
    • by tgma (584406) on Thursday January 29, 2004 @09:01AM (#8122700)
      Well, I agree with you about parody, but there is really nothing creative about this - they've just borrowed the look of Google to create a porn portal.

      Unless there is some very subtle joke here, I think that Google have a point. If Booble were using its revenues to say, fund free speech sites which are suppressed (allegedly) by Google in China, then that would represent some sort of statement. I don't see that Booble is making a statement, except that they are cheekily borrowing someone else's artwork to make money. Not exactly mass murder, as crimes go, but trademarks are legally protected for a reason.
      • by twitter (104583)
        Unless there is some very subtle joke here, I think that Google have a point.

        The government should not be in the business of judging jokes. The joke is not subtle and it's not very creative. So what?

        Copyright is an exacting thing so that people CAN build on the work of others - that's the whole point of copyright to begin with. As for Trademark, yeah the site is misleading, but Booble is not Google.

    • by hkmwbz (531650)
      If this is such a great parody and they are not making money by ripping off Google and fooling people, then why do they need to hide the owner of the domain behind a proxy?

      There's a thread about this in a webmaster forum frequented by adult webmasters, where someone who seems to represent Booble [gofuckyourself.com] writes:

      Thanks for all the kudos... Booble IS a parody, and therefore is protected by the first amendment. And, yes, it makes money. That's part of the joke. We have lawyers, too.

      The site IS slow and has be

  • heh (Score:5, Funny)

    by Mr_Silver (213637) on Thursday January 29, 2004 @08:49AM (#8122646)
    I liked the comment at the bottom of the Booble page:
    Booble.com is not affiliated with any other search engines (for starters, we have a
    sense of humor [booble.com]).
  • by microsoftisass (707800) on Thursday January 29, 2004 @08:49AM (#8122647)
    Thanks slashdot for introducing me to booble!!! P0rn is the backbone of the internet, glad someone create a easy and funny way to search out my fetishes..
  • No pr0n. (Score:4, Informative)

    by richie2000 (159732) <rickard.olsson@gmail.com> on Thursday January 29, 2004 @08:54AM (#8122668) Homepage Journal
    Well, Booble returns exactly 0 (zero) hits for the term "pr0n". So much for that "service". Try it on Google instead and hit the I Feel Lucky button.
  • by pleasetryanotherchoi (702466) on Thursday January 29, 2004 @08:59AM (#8122693)
    ...the marketability of the parody

    IWTKAL, but I think Booble is on pretty solid ground here. This is clearly, clearly a parody site (in fact, it's pretty bad parody if you ask me) and nowhere near functional.

    I mean geez, a porn search engine that doesn't return any hits for "Jenna Haze," "Cherry Rain," or "Belladonna" is a long way from "marketable."
  • by irokie (697424) on Thursday January 29, 2004 @09:06AM (#8122721) Homepage
    To shut it down sure would be twisted
    We just learned this place existed...


    The Simpsons has an answer for everything
  • Number 2 (Score:2, Interesting)

    by bbrazil (729534)
    From the article:
    2. Take steps to transfer the Domain Name to Google;

    Now what could google do with this...
  • by ndnet (3243) on Thursday January 29, 2004 @09:08AM (#8122734)
    IANAL, but I think I see the line being drawn here.

    Money can be made off of a parody, such as Spaceballs, because of the intent behind it - to make money directly from reaction to the parody.

    Booble isn't doing that. Booble is using the name parody as an advertisement. They're trying to make money by using that as a pull, a gimmick, a trick.

    Too bad Google probably has the name trademarked. Google now can use fair litigation to shut them down.

    In other words: Google uses dark magics for good purposes, such as self-defense!
  • Google is a dick (Score:2, Interesting)

    by relrelrel (737051)
    What's going to happen to these others? Like xgoogle.com (irc search) etc? Hell they may as well go after www.googirl.com.ar too, pathetic.

    I've already lost all confidence in Google, they're just another ecompany who's lost their way.
  • Value (Score:2, Interesting)

    by Popageorgio (723756)
    Wait, so a parody is okay...unless it's such a clever parody that it makes you money?
    • There is a big difference between a parody done for artistic/entertainment purposes and a parody done for pure business purposes.

      The movie Spaceballs was a parody of Star Wars and its purpose was to entertain.

      The search engine Booble is a parody of Google, but it's real purpose is not to entertain, but to provide search results for porn sites.

      Do you see the difference now?

  • After hearing about Booble on a local radio morning show, I figured I'd have a look. Booble is simple a clever spin on Link or TGP sites, trying to up sell paid porn sites. Booble gets a commission when you click any link and sign up for a premium site.

    You're better off just going to the hun for your porn. :-P
  • Why this isn't bad (Score:5, Insightful)

    by AltControlsDelete (642641) on Thursday January 29, 2004 @09:16AM (#8122779)
    I understand that the spate of frivilous and poorly thought out litigation that has swept over the Internet in the past few years has made everyone who appreciates the freedom that the net offers cringe when they see lawsuits and C&Ds like this one. However, Google's concerns don't appear to be unfounded.

    The comments that I've seen so far have been quick to point out that parodies such as Spaceballs and Hot Shots! made money and were protected, but the analogy falls down quicky, in my opinion. The Booble site looks exactly like Google, and the only indication (from the front page) that you're not dealing with the same company and the same search technology is the fine print at the bottom of the page that Joe Internet User couldn't read and understand if he wanted to. Going back to the film parody analogy, Booble's parody of Google would be akin to Mel Brooks casting Mark Hammill, Carrie Fisher, and Harrison Ford in Star Wars Episode VII: Spaceballs and creating a film that looked and felt like it fit in the series, while providing a small disclaimer at the beginning that it wasn't affiliated with the franchise.

    Most litigation and "big guy ordering little guy to C&D" that we see is bad and hurts everybody, but there are still times when it's legitimate. I submit that Google has done what it had to do in this case, and that we shouldn't all immediately run to back the little guy without considering the situation.
  • On an adult webmaster board a couple of days ago. The owner of booble posted a reply to the thread saying he believed he was completely protected by the 1st amendment. It was a parody site he claimed.

    Well...looks like he was wrong...
  • by The I Shing (700142) * on Thursday January 29, 2004 @09:27AM (#8122832) Journal
    I'd never heard of Booble before seeing it in the /. post.

    I think that the publicity brought by the C&D letter will probably increase Booble's bottom line to the point where they'll be able to fight it in court. A court fight would bring substantial media attention, and Booble's traffic would increase a hundred-fold.
  • $$Parody (Score:4, Insightful)

    by Tarwn (458323) on Thursday January 29, 2004 @09:35AM (#8122868) Homepage
    Several posts have questioned the difference between a parody making profit and the site in question. Besides the obvious RTFA, there is a rather large gap between the movies/songs suggested and the site in question.

    Parody's are allowed to make money, there is no problem with that. The distinction lies in whether the parody makes money (attention, whatever) due to it's own content or due to the content of it's predecessor. A successful parody uses it's predecessor as a starting point but, in order to be successful paradoy, must have it's own message, generally humor.

    Example: Song x makes a few million dollars. As a form of art another artist creates song y based on the original song x. People hear song y on the radio (stream, etc) and decide to buy (download, etc) song y because they like it. Or in simplest terms, they purchase/download/acquire song y due to it's own merits, not necessarally due to the merits of the original.

    In the case of the site in question, they have used the notoriety of the original to create business for themselves. They are not creating a commentary or derived work to be successful or not on it's own two feet. The goal of Booble is not to make a commentary/etc on Google, but to use the image of Google to sell their own product. The fact that it is Porn meens nothing, it would be no differant than if I started up a searchsite called Wooble, used a very similar front-end, etc. to search for Small Furry Animals.

    I would submit that the closest I have seen to an actual google paradoy would probably be elgoog, though even that would be stretching the definition of parody as I see no real commentary in Elgoog, only nifty "See what I can do"-ity.
  • Amazingly, only an hour ago, I considered google one of the coolest companies I knew of, and actively defended them when people commented on the amount of googlebombing and googlespamming.

    If this article is true, then they can go to hell, like all the other legal-driven asshat corporate tools I have to deal with on a regular basis.

    Way to destroy that brand loyalty. For the first time in years, I'm going to go and see what other search engines exist, because web searching just became a commodity in my min
  • by theLOUDroom (556455) on Thursday January 29, 2004 @09:47AM (#8122949)
    That is just a bunch of B.S.

    It's obviously a parody. Google's basic argument is that it's a successful parody. So you're not allowed to parody a website unless no one visits it?

    What a stupid viewpoint. Do that mean it's only ok to make jokes about corporations as long as no one laughs? After all, funny jokes are marketable, crappy one aren't. (Except here on slashdot.)
  • Love Hate (Score:3, Insightful)

    by Malicious (567158) on Thursday January 29, 2004 @09:53AM (#8122986)
    Amazing how meer days ago, Google was one of the heroes in the war against SCO.

    One decision since then has vilified them, and suddenly they are the bad guys trying to restrict our rights and freedoms.

    • That just indicates how thin the line really is, between amoral (the best we can hope for) and immoral (a corporation's natural leaning) actions.
  • Booble Replies (Score:5, Informative)

    by rangeva (471089) on Thursday January 29, 2004 @10:06AM (#8123058) Homepage Journal
    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
  • Booble is a genius idea for Google. Why not just buy them out?
  • by ScottSpeaks! (707844) * on Thursday January 29, 2004 @12:23PM (#8124280) Homepage Journal
    The parody defence under "Fair Use" only applies to copyright. Google's cease-and-desist letter is all about their trademarks, which are a rather different beast from copyrights. Using someone else's trademarks (or something "confusingly similar", and I expect that's how this would be judged) on a similar product/service is almost certainly going to put you on the wrong end of a court ruling.

    Also, Google really doesn't have much choice but to go after Booble, even if they had enough sense of humor to tolerate it. If they fail to "defend" their trademarks like this, their trademark protection would lapse, and every other sound-alike or look-alike variation on their trademark would also be availble for anyone to use.

  • Autoparodics (Score:3, Insightful)

    by Doc Ruby (173196) on Thursday January 29, 2004 @12:57PM (#8124649) Homepage Journal
    Google is effectively claiming that people are confusing Booble with the original Google, when they search for porn, so Booble is competing with Google and diluting Google's trademark. So Google is claiming the porn search business as essential to their brand image. Not exactly the best ammunition to hand the sniping Microsoft as the search war heats up again, with a Google IPO coming down the pipe.

    Does this Google defense demonstrate a new defense from satire fair use? If my website also publishes a weak self parody, can't I just claim that any otherwise legit mockery is unfair competition for my satire customers, and an illegal dilution of my brand? This is better than a "poison pill" to thwart a hostile equity takeover: it's an acid tab to thwart journalists!
  • by HTH NE1 (675604) on Thursday January 29, 2004 @01:18PM (#8124872)
    Google has developed a distinctive layout and design for its Google website. Over the years since its inception, Google has invested considerable time and money establishing exclusive rights in this layout and design.

    Hey, Google, I use a userContent.css client-side stylesheet in Mozilla to override aspects of your distinctive layout, including suppression of all your Sponsored Links, creating an unauthorized derivative work visible only to me. Wanna sue me?

    Anyway, to the story: Booble is only confusingly similar to Google because Google itself is confusing their own trademark with Froogle and other alterations of their trademark. If you mangle your own trademark, you have less grounds to object when someone else does. (This is the reason one of TiVo's representatives gave when TiVo eliminated the "Sad TiVo" logo in their Blue Screen of No Signal (BSoNS).)

    They've weakened their own trademark by their own actions. They should be serving cease & desist orders on themselves first before going after other sites.

    As to their objection that the pornographic searches of Booble damages Google's reputation, perhaps then Google should discontinue Google Image searches that allows searches for boobies [google.com] which turns up bare female human breasts at all three levels of their Safe Search settings.

    And the site does parody Google as it comments upon Google's own dilution of their trademark, such as Froogle. Google opened the door to parody with Froogle. Google has no case. (At least, so long as Booble doesn't sell real Sponsored Links or otherwise accept advertising money.)

    They do however have the money to pay lawyers through lengthy litigation. Booble will need to solicit aid from EFF and/or other sources willing to foot their legal bill.
  • by rawshark (603493) on Thursday January 29, 2004 @01:19PM (#8124882)
    I typed several of the leading search terms (you know what they are, and you know they're all pr0n related) and they all return 0 hits.

    However, the "I am feeling lucky" button changes. Sometimes it says "I am feeling lucky", sometimes it says "I am feeling playful", and sometimes it says "I am feeling nostalgic". Each of these buttons takes you to a different adult site.

    So, booble is more of a portal than a search engine.

    Now, we know that we can have software called "Firebird" and "Thunderbird" without the car industry dropping engine blocks on us. However, I think "portal" and "search engine" are close enough, in the eyes of the courts and lawyers, for this to be trademark infringement (after all, they thought the Phoenix browser infringed on Phoenix BIOS!)
  • by JofCoRe (315438) on Thursday January 29, 2004 @05:12PM (#8127734) Journal
    Argh, google has so far been one of those "good" and "nice" companies...

    Is someone _really_ going to mistake the booble site for google? C'mon, it's pretty obvious that it's not google. I guess they're pissed that booble knocked off the look of the google page or something. But then they should just have booble chagne it so it's obviously different. Taking down the site name is just too much... I've always though booble was kinda funny :)

    I guess google is just trying to protect their trademark or something, but really... is it that confusing?

    I guess nobody's told Yahoo about yourmom.com yet... that site is organize pretty much like yahoo.com... they even mimic the logo. Hmmm, hope yahoo doesn't read slashdot, cuz I may have just alerted them... dammit!

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