War Of The Pop-Ups

Cory Kincaid
DETROIT, Mich. – Pop-up advertising company WhenU.com Inc. won its second major victory in court this week when U.S. District Judge Nancy Edmunds ruled that the online marketing company should not be legally blocked from featuring pop-up ads on competitor's websites.

WhenU prevailed in a similar lawsuit filed by trucking company U-Haul in September of this year. The New York-based company has also been sued by Weight Watchers and Overstock.com.

Litigants in the case were Wells Fargo & Co. and Quicken Loans who both claimed that WhenU's aggressive and highly competitive pop-up marketing campaign hindered their own marketing campaigns for home loans and financial service.

WhenU represents financial institutions Bank of America Corp. and Citigroup, among many others.

Additionally, the plaintiffs claimed that WhenU's pop-ups obscured their websites and thereby infringed on trademarks.

The judge, however, failed to see their point, which was that visitors to their respective websites would be confused by the plethora of competing pop-up ads.

The judge stated in her 70-page ruling that users were "unlikely to confuse" the source of the advertisements and that the plaintiffs were not able to convincingly prove their businesses had suffered as a result.

"When WhenU's advertisements pop up and partially overlap plaintiffs' sites on the computer screen, it seems apparent to the user that what is appearing on his or her screen are two distinct sources of material," the judge stated.

WhenU's pop-up software comes bundled with certain free screen saver downloads from file-swapping networks. WhenU claims that users are clearly informed that marketing software is included in the free download and that users can disable it at any time.

Additionally, WhenU claims that its pop-up software does not invade user's privacy, it only tracks their activity on the Internet, and in doing so does not use cookies or profiling.

The judge found that targeting consumers according to interests expressed by their online behavior is a legitimate use of the Internet and she dismissed allegations that WhenU violated the plaintiff's trademarks.