Adware
This guide is based on UK law. It was last updated in June
2008.
Adware is ad-serving software that is often unwittingly
downloaded by internet users. It commonly piggybacks on another
application that is knowingly downloaded and reference to the
adware is often buried in the small print.
Adware can monitor a user's online activities. It
can examine keywords, URLs and search terms and then selects
which ads to serve the user, sometimes as pop-up or pop-under
adverts. So when the user is visiting one website, a pop-up ad may
be displayed to that user for a rival site. But those without the
adware installed would not see the ad.
Two parties potentially face legal issues with adware: first,
the adware companies themselves; second, their customers – i.e.
those who sponsor the ads.
There have been no cases on adware in the UK.
In the US, in June 2005, the Court of Appeals for the second
circuit found that the use of a registered trade mark in adware did
not infringe the rights of the trade mark owner, in a case brought
against adware company WhenU.com by 1-800 Contacts Inc.
WhenU's partnership with Kazaa, the file-sharing service, put
its adware onto 25 million computers. When any of those computers
visited 1-800 Contacts' website, a pop-up ad would be displayed to
the user. It made no reference to the 1-800 Contacts trade mark,
but simply referred to Vision Direct, a rival lens seller who had
employed WhenU's adware.
Although this case ultimately was decided upon the Court's
finding that WhenU had not used 1-800 Contacts' trade marks in the
course of trade when those marks had appeared in invisible form in
the adware programming language, the Court seems to have taken a
very similar attitude to Justice Jacobs in Reed and Judge Brinkema
in the GEICO case.
Where adware or its pop-up adverts make no visible reference to
the registered mark, then infringement is unlikely to be found.
However, 1-800 Contacts' position was not helped by the fact that
the Court noted that it had employed adware in a very similar
fashion to Vision Direct in the past.
Justice Jacobs' reasoning in Reed would suggest that the UK
Courts would take a similar view on the use of registered trade
marks in adware and pop-up adverts as in the 1-800 Contacts case –
although clearly other cases can turn on their own facts and
circumstances.
Trade mark considerations are not the only ones for providers of
adware, given that its installation on many computers is
unwitting.
To put adware on a computer by stealth could breach the Computer
Misuse Act of 1990, which makes unauthorised access to a computer a
crime, one that's aggrivated by modifying the contents of the
computer.
A lot of adware products involve unauthorised access and they
can amend your PC's settings. So those responsible could, at least
in theory, face a prison term of up to five years.
Much adware will evade prosecution because the law requires that
unauthorised access be proved beyond any reasonable doubt. Given
that adware often piggybacks other applications, this could be
tricky. Its purpose may be addressed briefly in the depths of a
licence agreement, it's just that too few people will read and
understand the terms. Instead, they just click "OK". There is
another law, however.
The
Privacy and Electronic Communications Regulations of 2003 had
some impact on spam control, but less well known is their impact on
spyware and adware.
The Regulations say that information – and that's any
information, not just personal information – must not be stored on
or accessed from a user's computer unless certain steps are
followed. These steps would require adware providers to give clear
and comprehensive information about what their software does, and
they would need to give users the opportunity to refuse the storage
of or access to that information.
If anyone suffers loss as a result of a failure to follow these
steps, they can sue. The Information Commissioner can also get
involved, which he may do if he gets complaints about underhand
installation tactics.
Be vigilant
The interaction of trade mark law and the internet is
complicated by the fact that trade mark law is territorial and
applied in each country according to its own laws. This means that
case law is not and cannot be expected to be consistently applied
even within the EU. However, there is now a reasonable degree of
certainty within the UK to advise on specific circumstances giving
rise to trade mark infringement on the internet.
In recognition of this, certain search engine operators,
including Google, will now exclude UK registered trade marks from
their search terms (for sponsored links) if they are notified of
the specific registration by the trade mark owner. Currently,
exclusions are made for identical marks only, not similar marks,
which is a continuing cause of irritation to trade mark owners.
The golden rule is to be vigilant for the appearance of
competitor websites in search results for your brands and above all
to register your brands as trade marks.
Contacts
