Pop-Up Ban Suit Strikes Out

Online pop-up ads do not violate trademark laws even if they cover up or appear alongside unaffiliated Web sites, including those of rivals, a federal judge has ruled.

U.S. District Judge Gerald Bruce Lee also placed some of the responsibility for those ads on computer users, saying they voluntarily agree to them, even if they do so unwittingly.

Lee's 19-page ruling Friday came in a lawsuit filed last year by the U-Haul Trucking company against WhenU.com, a company blamed for some of the pop-ups. Though Lee had dismissed the bulk of U-Haul's case in June, he did not issue his rationale until now.

WhenU provides users with free software like games and screen savers. The software comes with a separate program, SaveNow, that tracks Web traffic and matches a user's surfing habits with particular advertisers. So a person who visits the U-Haul site could theoretically receive a pop-up ad from competitor Ryder.

U-Haul argued that WhenU violated its trademarks because the ads appeared when Internet users visit U-Haul's site, potentially creating confusion.

In dismissing those claims, Lee wrote that the pop-up ads open "in a WhenU-branded window that is separate and distinct from the window in which the U-Haul website appears."

Lee also rejected U-Haul's arguments based on copyright and other laws.

He added that users ultimately agree to such ads when they accept WhenU's licensing agreement, though critics say few people bother to read such agreements when they download and install free software.

"Alas, we computer users must endure pop-up advertising along with her ugly brother unsolicited bulk email, `spam,' as a burden of using the Internet," Lee wrote.

Avi Naider, chief executive for New York-based WhenU, said he believed Lee's ruling will set a precedent for other judges reviewing the issue. WhenU is still a defendant in several similar lawsuits.

"The Internet's evolution as a comparative shopping technology is dependent on these types of technology," Naider said.

U-Haul is considering an appeal, said company spokesman Tom Prefling.

"We believe Web site owners have the right to display their Web sites without having their sites hidden by invasive advertisements," he said.

Earlier this year, the nation's largest news publishers reached a settlement in a lawsuit over similar ads distributed by Gator Corp. The settlement came after a different federal judge in Alexandria granted a preliminary injunction ordering Gator to stop delivering pop-up ads at the sites run by those companies.

By Matthew Barakat