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Just when the wild, wild West days of early Internet days seem to be coming to an end and all sorts of online conduct becomes more regulated, a federal judge has ruled in favor of those nasty Internet pop-up advertisements that appear on the computer screens of Internet users as they go to certain Web sites. THE CASE U-Haul moving company brought suit against WhenU.com in the United States District Court for the Eastern District of Virginia. U-Haul alleged that WhenU’s pop-up Internet advertisements violate U-Hauls trademarks and copyrights and trespass on U-Haul’s site since the pop-up ads immediately appear when users Internet users visit U-Haul’s Web site. WhenU defended itself by arguing that it was not guilty of trademark or copyright infringement or cyber trespass because its pop-up ads appear in a separate window, are not made to be actually part of U-Haul’s Web site, and are plainly labeled as WhenU advertisements. THE DECISION Judge Gerald Bruce Lee issued a legal opinion in favor of WhenU on Sept. 5. In his opinion, he noted the following with respect to WhenU’s pop-up ads: “While at first blush this detour in the user’s Web search seems like a siphon-off of a business opportunity, the fact is that the computer user consented to this detour when the user downloaded WhenU’s computer software from the Internet.” In terms of consent, Judge Lee was referring to WhenU’s program known as SaveNow, which displays Internet advertisements premised on a user’s particular browsing habits. In exchange for allowing these advertisements, users obtain software at no charge, including screensavers or music downloading programs (which can lead to other problems based on recent lawsuits filed by the recording industry). Indeed, according to WhenU, users truly do control whether they see the pop-up ads, as 70 percent of the 100 million people who reportedly have downloaded SaveNow have uninstalled the program. WHERE DO WE GO FROM HERE? Of course, while a significant first legal decision supporting online pop-up ads, this is just one decision from one federal trial judge. U-Haul certainly can appeal, and a number of other cases against WhenU remain to be decided. In an earlier case brought against pop-up advertiser Gator, another federal judge in Virginia granted a preliminary injunction motion against Gator and prevented Gator from causing its pop-up ads to be displayed on the Web sites of any of the plaintiffs without their consent. That case ultimately was resolved by way of a confidential settlement. The rules of this game still remain to be defined. At the end of the day, though, if pop-up ads fail to deliver real purchasing revenue, as has been the case with Internet banner advertisements, the business model may fail, whether or not legally blessed. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. Mr. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected] . To receive a weekly e-mail link to Mr. Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected] .

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