Pop-ups similar to offline ads, claims amicus brief

The Electronic Frontier Foundation (EFF), a non-profit organization that protects consumer interests in the digital world, has filed an amicus brief in the litigation in which 1-800 Contacts sued pop-up ad provider WhenU.com. The US District Court for the Southern District of New York enjoined WhenU from displaying pop-up ads, holding that there was a likelihood that customers would be confused into thinking that a retailer endorsed or licensed a competitor's product as a result of the competitor's ad appearing after the retailer's name had been typed into a browser bar (see WhenU floored by pop-up ad u-turn).

EEF takes the position that WhenU's advertising methods are no different from offline advertising that diverts consumers' attention to competing products while they shop. EEF claims that the precedent is dangerous because it attacks the medium, not the content. EEF maintains that 1-800 Contacts should have been required to show that consumers were actually confused about an ad's point of origin. EEF also criticized the court's finding that the only reason a consumer would search for 1-800 Contacts' website would be to purchase its products. Further, the user is responsible for WhenU's software having been installed on his or her computer and thus, presumably, he or she is interested in receiving competing ads.

Google has also filed an amicus brief.

While the war over pop-ups and paid placement in search engines is being waged in the courts, the reality of the marketplace and consumer preference are likely to be the final arbitrators of the efficacy of pop-up advertising. For a discussion of the current legal status of pop-up ads, see Law on pop-up ads remains unclear.

Douglas Wood, Reed Smith Hall Dickler LLP, New York

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