Gator-style 'parasite on the web' wins pop-up ad ruling

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 New York-based WhenU'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.

So, while the written opinion of the Eastern District Court of Virginia is still awaited, last week's summary decision, dismissing the main parts of the case against WhenU, is not a complete surprise.

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, or adware. 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.

The argument of WhenU is that their ads appear in clearly differentiated windows and that internet users have the choice to control the appearance of their desktops.

Last Thursday, Judge Gerald Lee granted WhenU's motion to dismiss the trade mark and copyright arguments and the unfair competition claim. He is now considering a motion by U-Hail to dismiss the remainder, according to The Wall Street Journal – although U-Haul declined to tell the newspaper why it asked for the claims to be dismissed.

WhenU faces other lawsuits. In February, Gator settled several similar cases with major publishers.

A site campaigning against WhenU and Gator is at:
www.WhenUsucks.com

A copy of the October 2002 U-Haul complaint is at:
www.whenusucks.com/documents/uhaul_complaint.pdf