Stopping a Trojan Horse: Challenging Pop-Up Advertisements and Embedded Software Schemes on the Internet through Unfair Competition Laws
Schiefelbine, Erich D., Santa Clara Computer & High Technology Law Journal
For ten years Greek warriors laid siege on the city of Troy unable
to penetrate its towering block walls. They needed a war machine.
They needed something new, so the Greeks devised a plan. They
built a giant hollow wooden horse. A group of warriors then
climbed into the hollow belly through a hole and enclosed
themselves inside. Meanwhile, the rest of the Greek army piled
into their ships and sailed away. A Greek spy stayed behind and
told the Trojans that the horse was an offering of peace. Elated,
the Trojans ran out of their city to receive it and rejoice over the
fleeing Greek army. A citywide celebration followed, and by
nightfall Troy was in a drunken uproar. Then, in the early hours of
the morning, while everyone was drunk or asleep, the Greeks
emerged from the belly of the horse, climbed down its legs, and
silently killed the Trojan sentries at all the city gates. (1)
As of 2000, 94 million people in the United States had access to the Internet from home. (2) It was estimated in 2003 that those with home-access spend an average of twenty-five and a half hours on the Internet each month. (3) Like the radio and television, it did not take long for businesses to realize that the Internet was yet another medium that could expose their goods and services to potential customer around the world. Not surprisingly, businesses have come up with numerous advertising schemes suited to Internet technology.
First, there was simple banner advertising. Then came spam, (4) keyword advertising and metatag schemes. (5) Now Websurfers face another advertising technology: "pop-up" ads. Pop-ups are advertisements that spontaneously appear in a window on the PC user's screen. The window containing the advertisement covers other windows that are open on the PC desktop, giving pop-up advertisers instant face-time with the user. If the consumer clicks on the pop-up ad, he or she is instantly taken to another Web site. This technology has inundated the Internet, (6) producing both beneficial and troublesome results.
Like all advertising, truthful pop-up advertisements keep consumers well-informed. A well-informed consumer base leads to greater competition among firms. Furthermore, in the case of the Internet, Web site owners sell advertising "space", which lowers the cost of operating a Web site. This allows e-businesses to provide consumers with "free" software and information. But nothing is free, and pop-up ads come with a cost.
First, pop-up ads are often annoying. (7) Users have to constantly close the ad windows to view desired Web content. Second, e-businesses, whose Web pages are covered by the pop-up windows, are concerned that they are losing valuable customers under the theory that the pop-up advertisements are railroading consumers to other Web sites to conduct their business. With these concerns in mind, this Comment analyzes whether pop-up advertisements offend current unfair competition laws. (8) More specifically, does pop-up ad software present courts with novel (9) issues in unfair competition law, and if so, how should those issues be resolved? These questions will be answered by analyzing the arguments made in one of the first popup ad cases to reach the courts--Washington Post v. Gator, Inc. This Comment will demonstrate that ad server hosts and pop-up advertisers should be liable to trademark holders for infringement and dilution.
Part II of this Comment offers a more detailed background of Adware technology, its specific purpose on the Internet, and sets up the factual context of this Comment by presenting the facts and parties of Washington Post v. Gator, Inc. Part III analyzes whether pop-up ads should survive a trademark holder's claims based on the federal trademark statute. In particular, Part III discusses whether pop-up ad servers "use" trademarks that simultaneously appear underneath and beside the pop-up advertisement. …