Banner ad case raises issues for brand owners

Denmark
The Enforcement Court of Copenhagen has issued its decision in an unusual injunction case (Cases FSF3-14416/2009 and FSF3-14727/2009, September 18 2009).
 
In June 2009 AidOnline ApS launched a software program capable of replacing banner ads on websites with other ads. AidOnline initiated a cooperation with 12 charities whereby it would donate 80% of its advertising income to charity. The remaining 20% would cover the costs of running its business. The cooperation with the charities subsequently stopped.
 
The Association of Danish Interactive Media and the Danish Newspaper Publishers' Association sought a preliminary injunction against AidOnline on behalf of over 50 news media companies. The associations claimed that AidOnline’s activities violated the Danish Marketing Practices Act and infringed copyright in the websites concerned.
 
During the hearing of the case, evidence was given by the editor responsible for Berlingske Media, a major Danish media group. The editor explained how online advertising is planned (eg, ads for trips to Italy will usually be placed on pages containing articles on Italy). The ads are monitored to ensure that a particular ad gets the exposure that the advertiser has paid for. Many news media companies finance their websites through advertising.
 
The Enforcement Court found in favour of the associations and granted a preliminary injunction prohibiting use of the software program. The injunction was granted without any demand for security, indicating that the court found that the associations had proven their case beyond reasonable doubt. In particular, the court held that AidOnline competed with the media companies in the sale of banner ads. Therefore, use of the software program was capable of damaging the advertising value of the websites involved. The court thus concluded that AidOnline’s activities were contrary to the Marketing Practices Act. The court also found that such activities infringed copyright in the websites.
 
The preliminary injunction is to be followed by a confirmatory action, unless the parties reach a settlement.
 
The advertisers and brand owners were not directly involved in the case and, consequently, their views were not heard. However, brand owners are unlikely to accept a system that allows third parties to remove their ads automatically, thereby reducing brand exposure. As opposed to traditional trademark infringement, AidOnline’s program does not use the trademarks of others without permission, but instead removes the marks without permission.

Had the court reached the opposite conclusion, brand owners would have had to consider alternative means of advertising due to the need to control the exposure of their brands.

Lisbet Andersen, Bech-Bruun, Copenhagen

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