United States: Court Enjoins Pop-Up Ad Firm From Popping Up Ads

On July 12, 2002, a U.S. District Court Judge in Alexandria, VA issued a temporary injunction against a California advertising network, barring it from causing pop-up ads to appear when the Gator Software user visits Web sites operated by twelve major online publishers. Consumers obtain Gator Corp.’s software when they install a separate "eWallet" product for filling out online forms and remembering passwords. As users visit certain Web sites, the software runs in the background and delivers pop-up advertisements on top of those sites.

The publishers complained that California-based Gator doesn’t fully inform users that its software will deliver ads nor that the pop-ups originate from the software and not the Web site they are visiting. Terence P. Ross, an attorney for the plaintiffs, said Gator's software "causes a loss of content control," and that its pop-up ads might conflict with stories on his clients’ Web sites and has the potential to create an appearance of journalistic bias or incompetence.

The plaintiffs are Washingtonpost.Newsweek Interactive, Gannett Satellite Information Network, Media West-GSI, the New York Times Company, the Boston Globe Newspaper Company, Dow Jones, SmartMoney, the Chicago Tribute Interactive, Condenet, American City Business Journals, Cleveland Live, and Knight Ridder Digital. The publishers claim that Gator's practices infringe on their copyrights and trademarks, and represent unfair competition and unjust enrichment.

Why This Matters: Publishers are loathe to allow the Gator business model to hijack their advertising traffic or erode consumers' opinion of their Web publishing brands. By signing the temporary injunction, Judge Claude Hilton indicated that he saw merit to their claims against Gator.

This article originally appeared in ADLAW By Request, a publication of Hall Dickler Kent Goldstein & Wood LLP.