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Google, Booble, and the Sad State of Parody
Posted by James Grimmelmann on Saturday, January 31 @ 18:43:39 EST Trademark
On January 20th, "Adult Search Engine" Booble went live. That same day, Google sent Booble a cease-and-desist letter, mentioning cybersquatting, unfair competition, trade dress infringement, and trademark infringement, dilution, and tarnishment.

Booble's reply took about a week, but the additional time shows. It definitely appears to have been drafted by anintellectual-property lawyer familiar with the particular facts involved; in contrast, Google's original C&D is very much a customize-and-forward get-them-off-the-web-NOW deal, citing only a single (copyright) case. Of course, that's not, as we say in the business, dispositive; give Google's legal folks enough time and they'll come up with their own long list of cites.

Editorializing a bit here, I'd say that cases like this one make me despair over parody doctrines. Booble's main defense is that their site is a parody of Google, and is therefore categorically protected (on various doctrines that reflect First Amendment values) from Google's various claims. Google's inevitable reply will say that no, Booble is not a parody.

And that's about as far as the legal doctrine can take us. There are lots of great slogans in parody cases, but no doctrinal precision. The case always winds up turning on whether the so-called "parody" really is one, and, honestly, that winds up depending just as much on the mood of the judge as on anything else. Where a sense of humor is involved, there's no way to write a doctrine that can be put into practice. "Parody" is no more of a meaningful legal term of art than is "funny."

I'm not in favor of just getting rid of the parody defense. Nor do I think that the concept of trademark should just go away. But I'm very uncomfortable that the Booble case, like so many others, will turn on something so utterly unamenable to what we think of as "legal" reasoning. This kind of uncertainty chills lots of legitimate, and wonderfully playful, reinventions. It also requires expensive fact-specific litigation even in cases that are open-and-shut--plead "parody" and you've just extended the lifetime of a dead-on-arrival legal case. Neither trademark holders nor trademark reuse artists get a very good deal from parody doctrine as it stands.

Not that I have any better ideas, mind you.

 
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Re: Google, Booble, and the Sad State of Parody (Score: 0)
by Anonymous on Wednesday, February 04 @ 13:58:59 EST
I am not a lawyer, but here is my business analysis. If this legal hole is not closed, IMHO it will be exploited more and more by publicity seekers.

Google vs. Booble: Parody or Publicity Stunt

Designed with a striking resembleance to Google, a new pornography search engine was launched on January 20. Booble.com was hit with so much traffic just 24 hours after its launch that its servers went down temporarily, trying to serve over 100,000 requests. How was this “marketing success” achieved?

Remember MikeRoweSoft vs Microsoft. Microsoft conceded that it may have taken its trademark rights “a little too seriously” in pursuing the 17-year-old Canadian high school student and settled amicably. The settlement followed a crush of international publicity, much of it casting Microsoft as Goliath vs. Rowe as David, which resulted in hundreds of thousands of visitors to MikeRoweSoft.com.

One week later, Booble appears sending press releases positioning itself to be the David in a fight against Google, which it claims it merely wants to parody.

But Booble’s founder is no Mike Rowe. Booble’s founder has an established sister porn site, Sir Rodney.com. Mike Rowe was also not earning money from everyone of click as Booble/SirRodney does. Unlike Mike Rowe, Booble’s founder is too embarrassed to give his name because he does not want to be associated with porn, while at the same time mocking Google for not wanting to be associated with his porn.

I have never been a fan of large companies over aggressively enforcing their trademark rights a position I have stated in my eBook on business domain names, at seemly.com. But in this case, it’s likely that Booble intentionally got itself into this trademark mess for the publicity and is a disgrace to legitimate trademark difficulties such as MikeRoweSoft.

A harmless publicity stunt? Not to Google’s image or legal costs.


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Re: Google, Booble, and the Sad State of Parody (Score: 1)
by DPMaster on Monday, February 09 @ 00:46:19 EST
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Being one of those "purveyors of porn" as it were, I must admit to having raised a fist, shouting, "You go!" when Booble entered the fray. Like many of us, Google's recent algorithm changes have all but driven me to drink, and Booble's nose-thumbing seemed a breath of fresh air.

That was before I began trying to avail my site of Booble's wares.

After registering and adding their link to my site, I patiently waited days without seeing my site in their engine. Understandable given the number of submissions they received as a result of the publicity surrounding them. Unfortunately, it was not until I began making inquiries that my site finally appeared - under keywords that had absolutely zero relevancy to what my site offers. This came after I had made suggestions using keywords that I know had already been programmed by them.

I am now engaged in a trading of words, an exercise in double-speak dancing that, though in its way enjoyable as an exercise, is quickly proving to me that they are in this for more than parody, but not for the benefit of those adult sites they claim to be in the business of supporting.

I'm not exactly sure what they're up to, but when one suggests keywords such as "breast" and finds that they've been listed under the keywords "sandm" (whatever that is) and "insert", and finds urls to totally unrelated sites imbedded in the linking url code, one becomes suspicious.

I would like to think that "one's" suspicions will be proven wrong, but "one" does not think that will happen.


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