So when CBS turns down a $50 million Super Bowl ad offer from Booble.com, all we can really assume is that they still remember the sting of inadvertent (and pierced) momentary frontage.

But we will offer a courteous suspension of disbelief when bloggers appear to have only heard of the adult-oriented search engine because of a trademark dustup with Google a few years back. That’s cute, guys. And yes, Booble’s still around, and apparently has enough users to make an obscenely ostentatious play for the Super Bowl audience.

At $2.6 million per half-minute, $50 million is enough for almost 20 minutes of bad influence.

But CBS won’t have it, no way, not-for-nuthin, the Parents’ Television Council will be all over them, gleefully recording the naughty goings on everywhere on the boob tube and storing them on the Web where other outraged parents can view them and complain to the FCC in complete detail about the dirty, dirty human condition flauntingly displayed in plain sight rather than beneath ankle-length skirts. Ahem.

Anyway, “the Eye never called us back,” says Booble founder Bob Smart, who also insists the ad was tamer than anything GoDaddy.com has put forward. The ad portrayed a woman catching her husband in the clandestine (and rare, of course) act of seeking out adult material online.

Until Booble, GoDaddy was the quintessential decency antagonist, transitioning repeatedly rejected spots into a viral promotional material at the site.

Perhaps getting rejected is nearly as valuable as actually paying for the spot. Rejection, and not the material, clearly, piques interest, right? Or maybe, the attention they receive from the throngs (well, gang) of protestors pointing to the questionable content is worth more than the ridiculous monetary offers.

Just ask this New Orleans fan. Without the stink caused by a taboo-rific tee shirt, unfortunately worded for the more sensitive types and aired full-on by Fox, she might have fallen into relative obscurity.

Now, instead of a fleeting moment over the airwaves that causes red faces in the living room, kids can turn to YouTube to watch it over and over again in relative peace. And if it weren’t for the PTC, you might not even have known about it.

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Google attorneys recently issued a “cease and desist” letter to adult search site Booble, challenging Booble’s parody claims. Booble attorneys shot back a response, defending the parody and denying Google’s demands for the Booble domain.

Booble owner “Bob,” who runs a “very successful” website design firm in New York, spoke with us today regarding the events thus far, and expressed his hopes for the outcome of what may or may not become a legal battle with an online giant.

“I think we’re dealing with the first knee jerk response that a company would make to a suspected infringement,” Bob said. “That’s how that letter read to me.”

When asked how far he’s willing to go if Google brought Booble to court, Bob said, “The good news is we have really good lawyers and we’re making enough money to pay for them. The money the porn on the site is generating will go to fight Google.”

Trademark Attorney Martin Schwimmer said in this article that “this is a [Google] competitor. It’s another search engine.”

Bob dismisses these claims. “I certainly don’t think Google’s entitled to any kind of injunctive relief. I don’t think they can go to a judge and show how we’re killing their business and that we’ve got to be stopped. We’re just not that big.”

Booble currently has around 6,000 listed sites. Google has well over 3 billion.

Mr. Schwimmer also argued that because the site “doesn’t comment on the entity it’s satirizing,” it’s not a parody.

Bob says his parody comments on the fact that so many people search Google for adult content, that Google is, in essence, Booble. Google might ask, however, if he’s commenting on Google or on the online community’s ravenous consumption of adult content.

In regards to possible non-legal outcomes, he said, “if Google wants to send me a letter that says ‘we’ll be ok if you do X Y and Z’ I think that would be a great outcome. The one thing I’m not going to do is to hand over the Booble.com domain name.”

“We feel good about our chances of prevailing,” Bob said. “I would be shocked, given how little is at stake, that Google would want to take it that far.”

So what’s Bob’s outlook?

“We have a wait and see attitude. Based on the level of interest though I’m not just going to shut it down. I think we’ll keep on teasing Google. We’re going to do something fun for Valentine’s day,” Bob said, referring to Google’s holiday-themed logo embellishments.

Garrett French is the editor of iEntry’s eBusiness channel. You can talk to him directly at WebProWorld, the eBusiness Community Forum.

Booble: Google Parody?

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:

1. the domain names are entirely different;

2. 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

3. the BOOBLE mark is distinct from the GOOGLE mark in that it differs in sound, appearance, commercial impression, and other relevant aspects:

1. it features a woman’s chest;

2. it uses the phrase, ‘The Adult Search Engine;’

3. it posts a warning that the web site contains explicit content; and

4. 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 parodic web site, we believe your reliance thereon is somewhat misplaced.

Finally, we note that Google does not object to numerous registered domain names and web sites, including the following few samples:

1. <www.booble.be/v2/index.php>
2. <www.elgoog.nl>
3. <www.elgoog.de>

Since the law does not appear to support Google’s position, we ask that Google reconsider its objections and accept the Booble web site in the spirit that it was intended – as a parody. We hope that these comments will permit you to now close your file on this matter. However, if you wish to discuss it further, please feel free to contact the undersigned.

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Garrett French is the editor of iEntry’s eBusiness channel. You can talk to him directly at WebProWorld, the eBusiness Community Forum.

Here is a copy of the email sent to Booble:

================================================

Via Email to: BOOBLE.COM
RE: Infringement of Google’s trademarks and trade dress: http://www.booble.com (Our ref.: 4.614)
Dear Sir or Madam:

Google is the owner of the well-known trademark and trade name GOOGLE, as well as the domain name GOOGLE.COM. As you are no doubt aware, GOOGLE is the trademark used to identify our award-winning search engine, located at http://www.google.com. Since its inception in 1997, the GOOGLE search engine has become one of the most highly recognized and widely used Internet search engines in the world. Google owns numerous trademark registrations and applications for its GOOGLE mark in countries around the world.

Google has used and actively promoted its GOOGLE mark for a number of years, and has invested considerable time and money establishing exclusive proprietary rights in the GOOGLE mark for online computer services and a wide range of goods. As a result of its efforts, the GOOGLE mark has become a famous mark and a property right of incalculable value.

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. By virtue of these efforts, the layout and design of Google’s website are recognized by visitors as originating with Google. Google aggressively protects and polices its intellectual property rights, including the various trademark and service marks used for its search services and related goods and services, the distinctive trade dress used to present its services to Internet users, and the copyrighted material on its website.

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.

Your use of the Domain Name and corresponding web site constitutes trademark infringement and dilution of Google’s trademarks and unfair competition under federal and state laws. Further, your improper duplication of Google’s trade dress on the web site will mislead consumers into believing that some association exists between Google and you, which tarnishes the goodwill and reputation of Google’s services and trademarks. Your registration and use of the Domain Name is in bad faith pursuant to the Uniform Dispute Resolution Policy (“UDRP”) and is clearly designed to appropriate the goodwill associated with the famous GOOGLE mark in violation of the Anticybersquatting Consumer Protection Act (“ACPA”). In addition, you would not be able to demonstrate any rights or legitimate interests in the Domain Name because you are using it to tarnish the GOOGLE mark.

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.

In view of your infringement of Google’s rights, we must demand that you provide written assurances within 7days that you will immediately:

1. Disable the http://www.booble.com website and discontinue any and all use of the Domain Name;
2. Take steps to transfer the Domain Name to Google;
3. Identify and agree to transfer to Google any other domain names registered by you that contain the GOOGLE or are confusingly similar to the GOOGLE marks;4. Permanently refrain from any use of the term GOOGLE or any variation thereof that is likely to cause confusion or dilution;
5. Immediately and permanently cease and desist from using the Google trade dress.

Sincerely,

The Google Trademark Enforcement Team

Garrett French is the editor of iEntry’s eBusiness channel. You can talk to him directly at WebProWorld, the eBusiness Community Forum.