Pop Up Lawsuit Dismissed

by Glen Shapiro, LawAndTax-News.com, New York

10 September 2003

Ruling last week, US District Judge Gerald Bruce Lee argued that software provided by WhenU.com, which monitors the internet surfing habits of users and provides pop-up advertisements in line with their preferences, does not violate trademark or copyright laws.

The firm was challenged last year by the U-Haul trucking company, which objected to having its website obscured by pop-up windows offering similar services.

However, WhenU.com offers the pop-up software packaged with services such as free screensavers or games, and in order to download the desired software internet users must first agree to the firm's terms and conditions, which include the interruption of their internet viewing with targeted advertising.

This acceptance formed the basis of Judge Lee's ruling, according to reports.

'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,' he explained.

Judge Lee also observed that in U-Haul's case, confusion between the original website and that advertised by the WhenU software was unlikely, as the advertising opens 'in a WhenU-branded window that is separate and distinct from the window in which the U-Haul website appears'.

However, spokesman for the haulage firm, Tom Prefling told the Associated Press that it is considering appealing the ruling, arguing that:

'We believe web site owners have the right to display their web sites without having their sites hidden by invasive advertisements.'

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