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POP-UP ADS ENJOINED IN TRADEMARK SUIT 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 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. — The New York Law Journal THE CASE THAT WOULD NOT END FINALLY DOES HOUSTON — When the then-newly formed Austin firm of George & Donaldson agreed to defend the publisher of Forbes and a reporter in November 1992 against business disparagement claims, the firm never dreamed how long the case would take. “We never gave up,” says David Donaldson, who represents Forbes Inc. and writer William Barrett along with Peter Kennedy, another partner in the firm. After two rounds of summary judgments in Houston’s 190th District Court, two rounds of appeals and three rounds of briefings at the Texas Supreme Court, Donaldson and Kennedy finally claimed victory for their clients Dec. 19. In an 8-0 decision in Forbes Inc. and Barrett v. Granada Biosciences Inc. and Granada Foods Corp., the Texas Supreme Court reversed the appellate court’s 2001 opinion that Granada Biosciences Inc. and Granada Foods Corp. presented sufficient proof to raise a material issue of fact with regard to their business disparagement claims. GBI and GFC filed the suit in October 1992, alleging they were harmed by an article published in the Nov. 11, 1991, issue of Forbes magazine. “The record before us presents no evidence that Forbes published defamatory statements about GBI and GFC with actual malice,” Justice Harriet O’Neill wrote for the court. — Texas Lawyer

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