• UPS Sues to Stop "Pop-Ups" on Their Website
  • July 29, 2003
  • Law Firm: Graydon Head & Ritchey LLP - Cincinnati Office
  • United Parcel Service of America Inc. (UPS) has filed a lawsuit in a federal court in Georgia, to stop an Internet advertiser's distribution of a software program that causes web users' computer screens to display "pop-up" advertisements for third-parties while they are browsing the UPS website.

    UPS alleges that the defendant, California-based Gator Corp., is unfairly free-riding on the UPS trademark and the investments UPS has made in its web site. Last summer, a federal district court in Virginia held that similar conduct by Gator likely violated federal trademark laws.

    Gator-distributed advertisements are displayed by a program called "OfferCompanion." Individual users download and install this program on their computers. The program monitors the user's web activity, collecting information about the websites visited, and attempts to create a profile of the user's preferences. When a user visits certain websites, OfferCompanion automatically transmits one or more pop-up advertisements -- which are displayed over the contents of the website. In the UPS case, OfferCompanion displayed an advertisement from a UPS competitor.

    The complaint contends that many users are not aware that OfferCompanion is present on their computers. UPS alleges that OfferCompanion is bundled with popular free programs, such as KaZaa and AudioGalaxy. OfferCompanion is also distributed along with unrelated software programs distributed by Gator, such as "eWallet," "Date Manager" and "Precision Time." The complaint also alleges that OfferCompanion is distributed through "drive-by-downloads" -- where web users unwittingly request installation of the software by clicking on innocuous-looking buttons displayed on their computer screens.

    UPS contends that it suffers a variety of harms from Gator's activities. First, the pop-up advertisements are placed on its website without authorization and in violation of UPS standards and policies. Second, the Gator pop-ups "interfere and disrupt" the UPS website and impermissibly change the "look and feel" of the site.

    The Gator advertisements also hinder access to the UPS website by UPS customers. UPS contends that Gator's activities seek to profit by unfairly "free-riding on the goodwill of UPS's famous trademarks and popular website."

    The complaint alleges that Gator has violated U.S. trademark law, along with a host of other "business torts." UPS asked for injunctive relief and money damages.