Pop-up provider suffers legal setback

A company that delivers pop-up ads has been barred from targeting visitors to a particular site. A US district court judge recently barred WhenU from delivering pop-up advertisements to some Net visitors, going against decisions in favour of the software maker's controversial ad tactics.

In late December, as part of a lawsuit filed against WhenU by 1-800-Contacts, the United States District Court for the Southern District of New York granted a preliminary injunction that prohibits WhenU from triggering pop-ups when people visit 1-800-Contacts' Web site. In the past, WhenU delivered pop-up ads that promoted rivals of 1-800-Contacts, including another defendant, Vision Direct. In issuing the injunction, the judge said the practice constitutes trademark infringement and violates the Lanham Act, which is the US trademark act.

Enjoining WhenU from delivering pop-ups to visitors of 1-800-Contacts "will prevent (WhenU) from capitalising on the goodwill and reputation that the plaintiff has earned through its own investment" and eliminate confusion for visitors, Judge Deborah Batts wrote in an 88-page decision. The ruling, though preliminary, is the first against WhenU, despite complaints from other companies against its practices and those of the similar service Gator, which is now called Claria. Both companies distribute free software that is used to monitor Web-surfing behaviour and serve targeted ads, including pop-ups. Gator, most notably, came under fire in 2002 from a group of high-profile newspaper publishers, including The Washington Post and Dow Jones, for its ad tactics, and the case was settled out of court in early 2003.

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