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NEW YORK — A Manhattan federal judge has enjoined an Internet advertiser from delivering “pop-up” ads to visitors of a retail Web site. Contact lens retailer 1-800 Contacts Inc. requested the injunction pursuant to its suit against Internet “adware” purveyor WhenU.com for trademark infringement and unfair business practices. WhenU.com had been sending pop-up ads for Vision Direct Inc., a competing contact lens retailer also named as a defendant, to visitors of 1-800 Contacts’ Web site who had, often unknowingly, installed WhenU.com’s software on their computers. In granting the injunction, Southern District Judge Deborah Batts cited a strong likelihood of customer confusion arising from the appearance of the pop-ups. “The fact that defendants’ pop-up advertisement for competing Internet contact lenses retailers appears shortly after a consumer types into the browser bar plaintiff’s trademarked name and accesses plaintiff’s homepage increases the likelihood that a consumer might assume defendants’ pop-up advertisements are endorsed or licensed by plaintiff,” Judge Batts wrote in 1-800 Contacts v. WhenU.com, 8043-02. Judge Batts’ injunction, issued in an 88-page decision, ends a string of victories for the pop-up ad industry. Judge Batts took note of a survey undertaken by an expert hired by 1-800 Contacts, which showed that 68 percent of SaveNow users did not know they had the software installed on their computers and that 76 percent who did know they had the software did not know what it did. The survey also found that 59 percent of SaveNow users believed pop-up ads were placed on sites by the site’s owners and 52 percent believed such ads were pre-screened and approved by the Web sites on which they appear. The survey results indicated “a consumer is likely to associate a Vision Direct pop-up advertisement generated by the SaveNow program with the 1-800 Contacts websites on which it appeared,” Judge Batts wrote. Terence Ross of Gibson, Dunn & Crutcher, representing 1-800 Contacts, hailed Judge Batts’ decision as “very significant,” and noted it was the first decision on pop-up ads to be based on live testimony from witnesses. “It’s likely to carry more weight than the other decisions,” said Ross. Anthony Lin is a reporter for The New York Law Journal , a Recorder affiliate.

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