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Pop-Up Ads Do Not Violate Trademark Laws, Judge Rules

September 09, 2003|From 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, even if they do so unwittingly.

Lee's ruling Friday came in a lawsuit filed last year by U-Haul International Inc. 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 such as games and screen savers. The software comes with a separate program, SaveNow, which tracks Web traffic and matches a user's surfing habits with particular advertisers. So a person who visits the U-Haul site theoretically could receive a pop-up ad from competitor Ryder System Inc.

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

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

Lee also rejected U-Haul's arguments based on copyright and other laws.

Avi Naider, chief executive of New York-based WhenU, said he believed Lee's ruling would set a precedent for other judges reviewing the issue. WhenU is a defendant in several similar lawsuits.

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

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