Tuesday, September 9, 2003

Ruling favors pop-up ads

By Matthew Barakat
The Associated Press

ALEXANDRIA, Va. - Online pop-up ads do not violate trademark laws even if they cover up or appear alongside unaffiliated Web sites, including those of rivals, a federal judge has ruled.

U.S. District Judge Gerald Bruce Lee also placed some of the responsibility for those ads on computer users, saying they voluntarily agree to them.

Lee's 19-page ruling Friday came in a lawsuit filed last year by the U-Haul Trucking company against WhenU.com, a company blamed for some of the pop-ups. Though Lee had dismissed the bulk of U-Haul's case in June, he did not issue his rationale until now.

WhenU provides users with free software like games and screen savers. The software comes with a separate program, SaveNow, that tracks Web traffic and matches a user's surfing habits with particular advertisers. So a person who visits the U-Haul site could theoretically receive a pop-up ad from competitor Ryder.

U-Haul argued that WhenU violated its trademarks because the ads appeared when Internet users visit U-Haul's site, potentially creating confusion.

In dismissing those claims, Lee wrote that the pop-up ads open "in a WhenU-branded window that is separate and distinct from the window in which the U-Haul website appears."

He added that users ultimately agree to such ads when they accept WhenU's licensing agreement, though critics say few people bother to read such agreements when they download and install free software.

Avi Naider, chief executive for New York-based WhenU, said he believed Lee's ruling will set a precedent for other judges reviewing the issue.

U-Haul is considering an appeal, company spokesman Tom Prefling said.

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