Gator bites back in pop-up ads saga

The Gator Corporation has filed suit against hotel chain Extended Stay America Inc in California, seeking a declaratory judgment that its pop-up ads, which appear on websites without the consent of the website hosts, are legal and do not infringe any intellectual property or other rights of Extended Stay America. The latter reacted by filing its own lawsuit in South Carolina, asserting claims against Gator for, among other things, trademark infringement, copyright infringement and unfair competition. Extended Stay America also moved to dismiss the California suit as an improper preemptive lawsuit.

Gator publishes and distributes to consumers a free computer program called OfferCompanion, often bundled with other free Gator software. Once installed on a computer, OfferCompanion is automatically launched each time the user opens his or her internet browser. OfferCompanion monitors the user's browsing activities and reports that information to Gator over the Internet. Gator then places pop-up ads over the content of the websites accessed by the user.

WashingtonPost.Newsweek Interactive Company LLC, along with numerous other media companies, sued Gator in June last year for causing pop-up ads to be displayed over the content of their websites without their permission. The plaintiffs obtained a preliminary injunction the following month enjoining Gator from, among other things, "causing its pop-up advertisements to be displayed on any website owned by or affiliated with the plaintiffs without the express consent of the plaintiffs".

Gator was also sued in September by United Parcel Service of America Inc (UPS), the package delivery service. UPS is seeking a preliminary injunction prohibiting Gator from placing pop-up ads on its website. UPS alleged that Gator's activities constitute false designation of origin, trademark infringement, dilution and unfair competition under the Lanham Act, as well as copyright infringement under the Copyright Act.

Virginia R Richard, Winston & Strawn, New York

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