Judge Dismisses Suit Against Pop-up Ads

(Direct Newsline) A federal judge dismissed a lawsuit by U-Haul International involving pop-up ads for U-Haul’s competitors that appear when people access the truck rental company’s Website.

Friday’s ruling, by Judge Gerald Bruce Lee, dismissed U-Haul’s lawsuit that had sought to ban the advertising software created by online marketing company WhenU. The opinion stated that WhenU is not violating the law because it did not copy or use U-Haul’s trademark and because computer users chose to download the advertising software.

Lee wrote, “Alas, we computer users must endure pop-up advertising along with her ugly brother unsolicited bulk email, ‘spam,’ as a burden of using the Internet.”

The lawsuit, filed in July 2002 in the U.S. District Court for the Eastern District of Virginia, claimed that WhenU violated U-Haul’s copyright and trademark and, by placing pop-up ads on its Website for competitors’ products, created unfair competition.

WhenU’s ads appear on Websites because computer owners have downloaded WhenU’s software. Called SaveNow, the software is found in many Web-based free screensaver programs that users download, according to court documents. To be able to download the software, the computer user must sign a license agreement, then SaveNow software is installed on their computer.

Using a directory of commonly used search phrases, frequently visited Web addresses, and keyword algorithms, the SaveNow program scans the user’s Internet activity to match the information in the directory. When a user visits a site in the directory, for example, an ad appears, the judge explained in his opinion.

The ad pops up on top of everything else on the screen and can be closed by the user. The ads that appear are sometimes for competing products, and sometimes they are not. WhenU sells advertising space to marketers but does not sell individual Web addresses to marketers and does not guarantee that an ad will be shown when a consumer visits a certain Website, the judge wrote.

“While at first blush, this detour in the user’s Web search seems like a siphon-off of a business opportunity, the fact is that the computer user consented to this detour when the user downloaded WhenU’s computer software from the Internet,” wrote the judge.

Three other lawsuits are pending against WhenU, which involve copyright infringement. A fourth, brought by TigerDirect, was dismissed earlier this month.

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