EFF Supporting Pop Up Company, Understanding Trademark Law

from the the-right-move dept

As annoying and sneaky as companies like Gator and WhenU are in getting their ad-pop-up technology onto users’ computers, that doesn’t mean the actual process of popping up ads for competitors when you visit a specific website should be illegal. Most judges realize this, and WhenU had won a series of judgments from companies protesting the actions of these companies. However, in December, they lost a case as a judge said that it was a trademark violation to have WhenU pop up ads for other contact lens providers if a user visited 1-800-Contacts’ website. If you assume that the end user purposely decided to put the software on their computer, then what’s possibly illegal about what then happens on their computer. If they want to see competing companies for websites they visit, that should be allowed. While they may take some criticism for supporting a pop-up provider, the EFF is absolutely right in filing an amicus brief in support of WhenU. Now, what someone needs to do is take these companies to court for installing their apps without getting real permission from users. The EFF makes the argument that someone walking down to a store to buy some contact lenses has the right to look at other contact lenses in a different store. I’d take the argument even further and say that (just like the case for letting search companies sell trademarked keywords) it’s no different than a company getting placement on the shelves near a competing product in the supermarket. If you make Bob’s Cola, then you want to make sure you’re on the same shelf as Coca-Cola, because that’s where people will look for you. That’s not a trademark violation. No one is going to confuse Bob’s Cola for Coca-Cola. It just makes sure that you’re advertising in places where you know your target audience is looking. Unfortunately, companies like Playboy continue to insist this isn’t true and are still suing search engines for selling ads on their trademarked keywords. How come they’re not suing magazine and bookshops for putting competing magazines on the stand next to their own magazines?

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Comments on “EFF Supporting Pop Up Company, Understanding Trademark Law”

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Matt says:

No Subject Given

they won’t sue a newsagent because what goes around comes around, and while some people who start looking at playboy then buy something else, the opposite also happens.
I bet they aren’t pissed off if a search site pops up a playboy add if someone searches for a competitor either.
just typical big business hypocracy

anonymouscoward says:

A better analogy

.. try this one on for size:

Say you are INSIDE a brick-and-morter CVS Pharmacy. Does RITE-AID have the right to put up a billboard INSIDE THE CVS advertising its lower prices?

Essentially, what the courts need to decide, is whether when a person “visits” a website, they’ve “entered the private premises” of a given corporation.

If so, then the WhenU type companies should not be allowed to interfere at all with the “experience” that shopper has during a visit “inside” that store.

A popup that occurs AFTER the person LEAVES the CVS website should be totally OK.

Hanzie says:

Re: A better analogy

… or maybe an even better analogy: suppose I’m ABOUT to enter a CVS Pharmacy. While I’m walking across the doorstep, about to enter the store, a PR guy from RITE-AID jumps up right in front of me and says: “Look, man, I don’t know why you would want to use this store. Our products are just as good, at a much lower price! Come to us!!”

One might say that the PR guy is simply advertising his product, in the same way that tv or radio ads do (albeit in a much more annoying fashion, which is why I think this is a better pop-up analogy). But does anyone seriously think that CVS should be required to tolerate a competitor trying to hijack customers as they’re entering the store? I think this might qualify as unfair business practice…

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