July 26, 2004

Google's right to use the name "Froogle" for its online comparison shopping search engine came into fire Friday, when an arbitration panel rejected the company's challenge of a website named Froogles.com.

Two of the three judges on the panel of the Internet Corporation for Assigned Names and Numbers, or ICANN, rejected Google's argument that Froogles.com was "confusingly similar" to Google.

"The dissimilar letters in the domain name are sufficiently different to make it distinguishable from Google's mark," the panel found. The name Froogles.com "creates an entirely new word and conveys an entirely singular meaning from the mark."

The search-engine company's loss has no immediate impact on its use of the name Froogle. But it means that the Froogles.com name will remain with Richard Wolfe, a disabled Holtsville, N.Y., carpenter who started the Web shopping site in March 2001, before Google introduced Froogle in December 2002.

But in a separate proceeding in the U.S. Patent and Trademark Office, Wolfe has challenged Google's attempt to register Froogle as infringement of his Froogles.com mark. And in Wolfe's application to register Froogles.com, a trademark office attorney, like the ICANN panel, determined in March that Froogles.com isn't confusingly similar to any other trademark, including Google.

"Google's right to continue to use the Froogle mark is seriously in question," said Wolfe's attorney, Stephen Humphrey. "To the extent they continue to use the mark, they are infringing on Richard Wolfe's trademark rights," Humphrey alleges.

However, the third judge on the ICANN panel dissented, saying the additional letters in Froogles.com "do not distinguish the domain name" from the Google trademark. The name Froogles.com could cause users to believe that the site is affiliated with Google, the judge wrote.

Wolfe is using a confusingly similar name in a bad-faith attempt to compete with Google's business, the judge concluded.

Google didn't immediately return calls and an e-mail asking for comment. But the decision by the ICANN panel, which arbitrates disputes over Internet names, doesn't preclude a challenge in U.S. District Court.

A court would likely hear the case anew rather than as an appeal, according to the ICANN panel's general counsel. Only a handful of cases arbitrated by the panel have been subsequently taken to court.

Humphrey wouldn't comment when asked what Wolfe's next step would be. But he said, "The trademark case continues. We have a lot of options right now."

He added, "This is a variation on David versus Goliath, and the stone has been slung."

Wolfe has said that he would consider settling the matter as his legal bills mount, but that his goal has always been to continue developing Froogles.com.

"It still amazes me that I should have to go through this at all," Wolfe said. "I started my shopping service called Froogles almost two years before Google started a shopping service called Froogle. What more does anyone need to know?"

Recently, Microsoft Corp. paid $20 million to settle a trademark case it brought against Lindows Inc. In return, Lindows will change its name.

Google, based in Mountain View, Calif., has filed 18 domain name disputes at the ICANN panel, challenging names like "googlesex.com," "google.biz" and "googleme.com." It has won every challenge but Froogles.com.

Source: Forbes.com

        

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