1-800 Contacts has already won the first round of a similar action against another competitor, Vision Direct, and on-line advertiser WhenU.com.
The action, filed yesterday in federal court in Utah, alleges trade mark infringement, unfair competition, trade mark dilution, copyright infringement and unfair trade practices by Coastal Contacts.
Specifically, 1-800 Contacts claims that Vancouver-based Coastal Contacts has used its trade marks to trigger thousands of unauthorised pop-up ads to appear on the web site of 1800contacts.com to tempt visitors away to the Coastal Contacts site.
The action is similar to a case brought by 1-800 Contacts in 2002, when the company sued over the appearance of pop-ups advertising rival contact lens company Vision Direct when users had typed search terms including "1-800 Contacts".
In that case internet users had downloaded ad-serving software, or adware, from WhenU.com as part of a package downloaded free from Kazaa, the P2P service. This adware examined keywords, URLs and search terms in use on the user's browser and then selected which ads to serve the user.
The filing by 1-800 Contacts was not available at the time of writing and the company has not said which advertiser or brand of software is responsible for placing the Coastal Contacts pop-ups on its site – although there are companies other than WhenU.com that provide similar services.
In January a New York court ruled that the Vision Direct ads breached 1-800 Contacts' trade marks and granted a preliminary injunction against both WhenU.com and Vision Direct.
A problem with such cases can be that when computer users install the ad-serving software on their computers, they are told what it will do in advance. So the argument for companies like WhenU is that users should have the right to decide what they see on their monitor when they surf the web – just as they can disable all graphics on a web site by adjusting their browser settings.
Joe Zeidner, the lawyer for 1-800 Contacts, explained: "We are seeking an end to the hijacking of our web site, damages for the customers inappropriately taken by Coastal Contacts, and attorneys fees."