L.L. Bean upset about pop-ups, suing everybody

This situation is somewhat similar to the Google keyword sale suits. Here, LL Bean is upset because Claria (formerly Gator), one of the nations "leading" adware/spyware companies, is sending people pop-ups for competing companies when people visit their site.

By creating ads that appear when Internet users visit L.L. Bean's Web site, retailers Nordstrom, J.C. Penney, Atkins and Gevalia have traded on the company's name and infringed on its trademark rights, said Mary Lou Kelley, vice president for E-commerce at L.L. Bean.

"These advertisers are illegally poaching on L.L. Bean's trademark," Kelley said. "Using our trademarked name as a trigger to which you want to serve your ads causes customer confusion and crosses the line into trademark infringement."

There have been such suits in the past. These suits have been largely unsucessful because judges are under the mistaken impression that the users have choosen to have the ad serving software on their computers (or they at least agreed to a click-wrap license when they got hit by the drive-by download of the adware). In UHaul v. WhenU, the court held that the serving of pop-ups was not trademark infringement, and neither was it infringement that the adware company used the trademarks in their database. On the other hand, there is the 1-800-CONTACTS case, in which the court held that the pop-ups for competitors led to users having initial interest confusion as to the source of the ads and therefore they are infringement.

How you hope this turns out may depend in part on your view of the Internets development. Personally, I believe that the answer to these sort of problems (spyware, adware, spam, etc) lays largly with consumer education. Those in the know really get no spam or pop-ups. Spyware may be a different matter however, if it is of the sort that just loads itself onto the users computer without any warning. This I believe is an unfair and deceptive trade practice (actually, the drive-by downloads may be as well). I am not sure that user education and technological fixes cannot solve these problems, but perhaps a little judicial intervention could halp as well.

Article at CNN.