Described by U-Haul as a "parasite on the web", WhenU stood
accused of trade mark and copyright infringement and unfair
competition for its pop-up adware. These ads, headed "Save Now!",
will be familiar to any internet user who knowingly – or
unwittingly – downloaded the New York-based company's software.
The problem for U-Haul and other aggrieved web site operators is
that there are no laws conveniently designed to deal with WhenU's
practice, which mirrors the business model of its more famous
rival, Gator.
Judge's Lee's verdict was announced in court in July. He has now
given his reasons in a written opinion.
WhenU's software exists on 25 million computers, largely as a
result of its partnership with KaZaA, the popular file-sharing
service. When internet users download KaZaA's software, they also
get WhenU's ad-serving software. Its software examines keywords,
URLs and search terms in use on the user's browser and then selects
which ads to serve the user. Its 400 advertisers include British
Airways, JP Morgan Chase, General Motors, Priceline and
Verizon.
U-Haul sued WhenU.com in October 2002. It argued that, when
those with U-Haul's software installed visited U-Haul's homepage,
adverts would appear on screen for rival companies Budget
Rent-A-Car, Moversbay.com and Door to Door Storage, without
U-Haul's authorisation.
In addition to trade mark and copyright infringement and unfair
competition, U-Haul threw in claim of trade mark dilution,
contributory copyright infringement, misappropriation, interference
with prospective economic advantage, unjust enrichment and a
violation of the Virginia Business Conspiracy Act. "It must be
stopped," said U-Haul's complaint.
According to BusinessWeek On-line, Judge Lee wrote, "The fact is
that the computer user consented to this detour when the user
downloaded WhenU's computer software". He added, "While pop-up
advertising may crowd out the U-Haul advertisement screen through a
separate window, this act is not trademark or copyright
infringement, or unfair competition."
This does not make pop-up ads any less annoying, however.
According to the judge, "Alas, we computer users must endure pop-up
advertising along with her ugly brother 'spam' as a burden of using
the internet."
WhenU's CEO, Avi Naider, welcomed the ruling, saying, "This is a
victory for consumer choice - it ultimately protects consumers'
right to control what they see on their computer screens".
U-Haul has yet to comment.
