The suit follows legal actions filed last month by LL Bean
against four companies that the e-tailer says are using adware to
generate rivals' pop-up ads on its web site.
The complaints accuse retailers Nordstrom, JC Penney, Atkins
Nutritionals and Gevalia Kaffee of trading on the LL Bean name
through their use of pop-up technology from Claria.
The controversial behavioural marketing company is well known in
the internet community for its software, which delivers pop-up ads
on behalf of its clients to third party web sites without
permission from the operators of those sites.
The software examines keywords, URLs and search terms in use on
the user's browser and then selects which ads to display to that
user. These ads often refer to competitors of the site being
visited and are therefore highly controversial – to such an extent
that numerous legal actions have been filed against both pop-up ad
firms and their clients.
Prior to the four suits filed in May, LL Bean and Claria were
already embroiled in litigation, following Claria's filing of a
declaratory action asking the court to confirm, among other things,
that its software does not infringe on any LL Bean trade mark.
Claria's new suit, filed on 3rd June, claims that LL Bean's
actions are a "baseless resort to sham litigation, all part of its
unsuccessful litigation strategy against Claria."
According to Claria, two of the companies sued by LL Bean have
not used Claria for over 1.5 to 3 years. Of the remaining two
companies - Atkins Nutritionals and Gevalia Kaffee - one has never
been a Claria customer and the other has never purchased ad
inventory in the apparel category for ads to be shown directly to
LL Bean consumers.
"This move by LL Bean reveals that they are fearful they cannot
win on the legal merits of their long-standing lawsuit against
Claria," said Jeff McFadden, Claria's CEO. "Instead, they have
chosen to wage a battle through PR campaigns and by attempting to
intimidate their competitors through the filing of frivolous
lawsuits. We are outraged by LL Bean's irresponsible tactics and
have asked the court for damages relating to their reckless actions
and anti-competitive and anti-consumer behaviour."
"We are not at all surprised that Claria would sue us in
response to our efforts to protect our trade mark. Given the form
of their business, Claria is naturally a litigious operation," Mary
Lou Kelley, LL Bean's vice president of e-commerce, told ClickZ
News. "LL Bean plans to vigorously press its trade mark
infringement complaints, and we will be equally vigorous in
defending against this latest manoeuvre by Claria."
