Intellectual Property Law and Competitive Internet Advertising Technologies: Why "Legitimate" Pop-Up Advertising Practices Should Be Protected

Article excerpt

INTRODUCTION

Internet advertising has become a growing source of frustration for Internet users.1 The main source of this frustration seems to stem from "spam," or unsolicited "junk" email advertisements.2 The phrase "Internet advertising" immediately conjures up thoughts of closing annoying pop-up advertisements and sorting through countless unsolicited e-mail advertisements. These negative connotations often overshadow the increasing value of the Internet as a free, extensive source of information.3 In fact, the Internet has created a more informed consumer. Using their home computers, Internet consumers can quickly research comparable products and compare prices of several vendors before making a purchase.4 In this way, the Internet has advanced consumer education and choice. Before the Internet, consumers looking for snow tires might peruse a few catalogs or travel to an automotive parts store to inquire about what types of tires were available. Their access to information about products would clearly be limited to the brands of tires sold in those catalogs or stores. Using the Internet, they can find information on every single manufacturer of snow tires, read product reviews of all competing brands, and find the best price among several retailers. While reading a review of one brand, they might see an ad directing them to information about a competing brand. This type of advertising exposes consumers to alternatives that they may not have considered. As such, advertising has played an integral part in making the Internet a valuable consumer tool.5

Advertisers, realizing the importance of reaching Internet consumers, have rushed onboard.6 As a result, the attention of these educated consumers has become "valuable currency on the Internet."7 Not surprisingly, the anonymity and ease of access of the Internet has spawned abuse by advertisers, including spam8 and unsolicited pop-up advertisements.9 However, legitimate Internet advertising supports and maintains the industry.10 Many website operators and publishers provide free information and services and sell advertising to subsidize those efforts.11 In order to attract potential advertisers, publishers must amass an audience that would be "valuable currency"12 to Internet advertisers. To create this audience, an ad vendor must be able to deliver relevant messages to a targeted audience.13 For example, an ad selling baseball memorabilia would perform better14 on a baseball website than on a general sports website, and further, such an ad would probably yield poor results on a general news website.15 Unfortunately, the prospect of increased ad revenues has created an Internet environment where users are inundated with advertising. As consumers have become savvier, they have learned to ignore it.16 As a result, publishers and advertisers have faced the challenge of creating new and innovative online marketing solutions to attract and keep consumers' attention.17

Early advertising technology consisted of banner advertising.18 Internet search engines19 targeted ads by the keywords on which users searched. As the need for increased targeting developed, search engines created competitive keyword advertising and metatagging solutions for advertisers.20 Other methods involved direct, opt-in e-mail marketing21 and its dreaded illegitimate counterpart, spam.22 A more recent technology is "pop-up" advertising. Pop-up ads spontaneously generate a new browser window containing an advertisement while a user is surfing the Internet.23 These ads certainly seem to address the concerns that consumers have learned to ignore Internet advertising. Pop-up ads can literally "pop-up" and grab a user's attention. The ads may even superimpose themselves on the website that the user is viewing.24 However, this new technology has already become so universal that web surfers have begun to tune it out. In fact, there has been a backlash, as many users have found them frustrating because they must affirmatively close the pop-up windows if they are not interested. …