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U-Haul, 1-800 Contacts Join Anti-Pop-Up Bandwagon
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By Christopher Saunders | October 14, 2002

U-Haul and 1-800 Contacts are joining the legal battles against the advertisers and software firms responsible for site-targeted pop-up ads, as pressure on the controversial advertising model increases.

Phoenix, Ariz.-based U-Haul alleges that WhenU.com, a software company headquartered in New York, delivers ads for competitors to users of its SaveNow software who visit Uhaul.com -- thereby infringing on the transportation company's trademark. The suit, filed in federal court in Virginia, also names Budget Rent-A-Car, Moversbay.com and Door-to-Door Storage, which allegedly advertised using WhenU's software.

Separately, 1-800 Contacts is suing WhenU and advertiser Vision Direct for ads that appeared on 1800contacts.com.

The suits claim that WhenU deliberately targeted offers from rivals based on the Web site that its users were visiting -- profiting from their brand equity, according to the complaints.

"WhenU.com profits from free riding on other Web sites' content," Draper, Utah-based 1-800 Contacts claims in its suit. "WhenU.com's pop-up advertising scheme allows WhenU.com to profit, without the permission of the Web sites it targets."

The suits also allege that consumers are unaware that the pop-up ads are delivered by WhenU's software, rather than the sites they are visiting.

"WhenU.com's pop-up advertising scheme is inherently deceptive and misleads users into falsely believing the pop-up advertisements supplied by WhenU.com are in actuality advertisements authorized by and originating with the underlying Web site," it reads.

But WhenU dismissed the charges and said it provided "contextual marketing" that helps consumers to make better purchasing decisions.

" All WhenU offers are clearly branded from WhenU.com and delivered based on relevancy to the user," a company spokesperson said. "WhenU gives consumers additional choices when they surf online, and millions of users have benefited from our coupons and offers."

Executives at the firm declined to comment further on the litigation.

According to the suits, advertisers also are named because they knowingly allowed WhenU's pop-up ads to infringe on 1-800 Contacts and U-Haul's trademarks.

"WhenU.com was ... apparently contacting their competitors and expressly soliciting them to place ads on their Web site," said Terence Ross, the attorney representing 1-800 Contacts.

That hasn't been mentioned in other recent lawsuits filed against WhenU.com and Redwood City, Calif.-based Gator Corporation, another software firm under fire for its pop-up ads.

Gator, which offers ad-supported software, is being sued by Web publishers including Dow Jones & Co. , The New York Times Co. and the Washington Post Co. over its practices of selling pop-up ads to advertisers, on the basis of targeting the ads to users who visit those sites.

But Gator claims the lawsuit is little more than sour grapes on the part of the publishers -- that its ad model works, and theirs doesn't. To illustrate the point, the company points to orders for ads it took from the New York Times, which called for pop-ups to run across the sites of competitors.

The firm also says that users are fully aware that the pop-up ads come from its ad server, rather than from the sites that trigger them.

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