[Says Wells Fargo “We see today’s decision as a set back for consumers’ struggles to protect their desktop (sic) from deceptive, confusing and intrusive forms of advertising. 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. 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.”]
Industry News Release from WhenU:
NEW YORK, June 28 — WhenU.com, Inc., a New-York based Internet advertising firm, won a major victory yesterday when the Second Circuit Court of Appeals dismissed with prejudice trademark infringement
claims brought by 1-800 Contacts. In ruling for WhenU, the Second Circuit found as a matter of law that WhenU’s targeted delivery of advertisements does not constitute trademark infringement. “The fact is that WhenU does not need 1-800’s authorization to display a separate window containing an ad any more
than Corel would need authorization from Microsoft to display its WordPerfect word-processor in a window contemporaneously with a Word word-processing window,” wrote Chief Judge John Walker.
The decision is consistent with previous lower court rulings for WhenU in Michigan and Virginia.
“We could not have asked for a better decision,” said Bill Day, CEO of WhenU. “This ruling closes the book on any lingering doubts that advertisers may have had about this technology. It’s clear that the consumer owns the desktop, and our sole focus is to lead the way in best practices and enhance the consumer experience so that more and more consumers want to take advantage of our competitive advertising and comparison shopping technology.”
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“The opinion is the most important ruling to date on the subject of targeted Internet advertising,” noted Celia Barenholtz, of the law firm of Kronish Lieb Weiner and Hellman who represented WhenU, “and could have broad ramifications for search engines such as Yahoo! and Google that allow advertisers to buy targeted advertising based on brand names of competitors.”
In finding for WhenU, the court distinguished WhenU’s conduct from that of its competitors — noting that WhenU brands its ads prominently, does not disclose the proprietary contents of its directory and does not permit advertisers to pay for their ads to appear on specific websites. Google had filed an amicus brief urging the court to dismiss the trademark claims.
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WhenU actually sounds like a somewhat responsible advertiser (based on the conduct comments). Also sounds like less scrupulous advertisers shouldn’t necessarily expect the same judgement in their favour.