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Friday, 21 November 2003


A federal court has dismissed Wells Fargo's application for interim injunctive relief against WhenU, a software maker that launched rival pop-up advertisements when customers accessed the bank's website. Said Judge Nancy Edmunds (US District Court of Michigan, Southern Division): "the fact that some WhenU advertisements appear on a computer screen at the same time the plaintiffs' web pages are visible in a separate window does not constitute a use in commerce of the plaintiffs' marks". The bank alleged copyright and trade mark infringement.

WhenU makes software that tracks the movement of websurfers and serves up targeted advertisements to those who are likely to make a purchase. For example, an ad for travel site might appear while a surfer is visiting The software is bundled with other popular downloads such as peer-to-peer software BearShare or weather applications, that consumers use for free by agreeing to receive occasional ads. About 30 million internet users have WhenU's software on their desktops. Said the judge: “The fact is that the computer user consented to this detour when the user downloaded WhenU's computer software. While pop-up advertising may crowd out the U-Haul advertisement screen through a separate window, this act is not trade mark or copyright infringement, or unfair competition".

Wells Fargo described this decision as "a set-back" for consumers: "This form of advertising can create confusion for impacted customers who visit financial sites and believe the offers they are receiving are from that financial institution", said a Wells Fargo representative. "The source of these pop-up advertisements may not always be clear to the customer. It's important for customers to know who they are dealing with online, and we took action to eliminate this source of confusion for our customers". No court date has yet to be set for the full trial.

The IPKat, despite its instinctive and deep-rooted dislike of all pop-up advertisements, is keeping an open mind on the outcome of the next round of this litigation since neither the copyright nor the trade mark issues are susceptible of easy resolution.

How to kill pop-up ads here, here and here
Things that pop up here, here and here

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