Online Ads Evolving

Pop-up ads are annoying for many Internet users, but don’t expect any relief soon. In fact, it’s possible the situation could accelerate based on one court ruling. A federal district judge ruled that even when pop-ups appear next to a competitor’s Web site, they don’t violate trademark laws.

Facts of the case: In 2003, U.S. District Judge Gerald Bruce Lee dismissed a suit in which truck-rental company U-Haul asked for a ban on software distributed by an Internet marketing firm named WhenU.com.

The company provides advertisers with a targeted audience for online ads. It distributes free software bundled with games, screensavers and a program called SaveNow that tracks and logs the types of Web sites each user visits. The program then matches this information with available ads and sends relevant pop-ups to the user's computer screen. 

So, a user visiting U-Haul’s site could get a pop-up ad from a competitor. U-Haul claimed that feature violated trademark, as well as copyright and unfair competition laws.

The judge disagreed, saying: “The pop-up ad may modify the user's computer display; however, this modification does not constitute copyright infringement. To conclude otherwise is untenable in light of the fact that the user is the one who controls how items are displayed on the computer, and computer users would infringe copyrighted works any time they opened a window in front of a copyrighted Web page that is simultaneously open in a separate window on their computer screens.”

The judge also ruled that the pop-up ads did not confuse consumers as to their origin. He noted that the ads open in a separate window from the window in which U-Haul's Web site appears. The ads appear in a window marked with the WhenU brand name and the fact consumers agree to receive these ads further reduces any chance of confusion. (U-Haul International, Inc. v. WhenU.com, Inc., No. 02-1469-A)

The ruling is instructive, but the issue is far from settled. Other cases involving WhenU and similar services are still pending.

 The Implications: You may never have complete control over how your trademarks are received online. The U-Haul decision acknowledges that the Web is an emerging forum for comparison shopping, and that pop-up ads, (like unauthorized spam or e-mail ads) are a fact of cyber life. Companies need to figure out the best way to deal with this situation as they stake a claim to their own small corner of the Internet. For more information, consult with your attorney.

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