Website “U-Haul” was unimpressed when, thanks to ‘adware’ firm “When U,” visitors to the U-Haul site found it obscured by pop-up ads for U-Haul’s competitors. U-Haul sued When U, who motioned to dismiss.
Who: WhenU and U-Haul
Where: District Court of Virginia
When: July 2003
As reported on ‘Adlaw By Request’, the excellent online advertising and marketing law reports made available by US law firm Hall Dickler Kent Goldstein & Wood, a recent US District Court Judgement has boosted pop-up ads on the web.
Prior to this case, and as reported on marketinglaw, there had been previous litigation in respect of pop-up digital advertising. Pop-up ‘adware’ firm Gator Corporation had already been on the wrong end of suits by website owners claiming that the appearance on their sites, without their consent, of pop-up advertising courtesy of software made available by Gator, constituted various legal wrongs including trademark and copyright infringement.
Here on marketinglaw we expressed scepticism as to whether such claims held water on either side of the Atlantic and the judgement in this new case by US District Court Judge Gerald Lee, supports us in those views.
The U-Haul claim was over ads which appeared on U-Haul’s website uhaul.com for U-Haul’s competitors. Naturally enough, U-Haul was not impressed by this and brought proceedings against the adware firm WhenU that had made these pop-ups possible.
U-Haul sued for trademark and copyright infringement, unfair competition, trademark dilution and contributory infringement.
WhenU then made a motion to dismiss U-Haul’s claim and the judge has now granted the motion and held that pop-up ads do not in his view violate federal copyright or trademark laws.
U-Haul’s request that the remaining four charges be dismissed was ‘taken under advisement’.
Why this matters:
This decision may well go to appeal, but for the moment it strikes a resounding blow for freedom of commercial speech on the net. One has to have some sympathy for U-Haul in trying to stop advertising for competitors appearing on its own front lawn, but as the Virginia judge has found, WhenU’s activities do not easily fit into any of the categories of claim specified.