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L.L. Bean Suing Competitors For Spyware-Linked Ads
httpamphibio.us writes "According to this article on CNN, L.L. Bean is suing 'Nordstrom and three other companies it alleges used pop-up ads that appeared when some customers visited the clothier and outdoor gear retailer's Web site.' The article mentions Claria Corp, a maker of spyware . This is an interesting route to go about getting rid of spyware, attacking its source of income instead of the manufacturer."
It's not spyware, it's online behavioral marketing!
-- Of course I'm paranoid. I'm a sysadmin.
I'm surprised that people don't see the First Amendment concerns. Be careful what you wish for. What if L.L. Bean where "taking the high road" by preventing their customers from being "accosted" with information such as L.L. Bean's use of sweatshop labor...
This is not a First Amendment issue. If the situation were that surfers were voluntarily using a popup-generating program (remember www.thirdvoice.com? (thirdvoice wiki) then it would be, but this situation is different: Surfers who did not authorize the placement of the spyware software on their PCs are being presented with Nordstrom's advertising.
Nordstrom would have the right to bitch about LL Bean's operations in a voluntary medium, but Nordstrom has no First Amendment rights in a medium that entails the unauthorized installation of spyware any more than I have the right to come into your home with a bullhorn and lecture you about the evils of the bush administration. If the allegation of Nordstrom's paying money to a spyware popup-vendor is true, then a reasonable person could argue that Nordstrom has engaged in computer trespass or other illegal behaviour, and it would certainly have no First Amendment rights to do that.
The issue here, as explained in the article, is trademark ("TM") infringement. To get TM infringement, one element is that there must be use in commerce. Spyware of this sort operates, as I understand, by having a list of keywords against which, for example, user queries can be compared. In WhenU's case, it had a list which included the TMs of it's competitors (it's clients' competitors, actually).
One court, in N.Y., granted an injunction holding that WhenU used it's competitor's TMs in commerce in two ways - one, in the file against which it compared keywords and, second, in that WhenU's window popped up when the competitor's webpage did (the court thought WhenU played off of the competitor, I think). Personally, I don't get the court's second point at all. WhenU did nothing to get any competitor's website to come up. An analogy might be if a business erected a sign near it's competitor's location - I am not familiar with any caselaw on this point, but I would imagine it wouldn't be TM infringement.
Another court, in Virginia, found the opposite, that inclusion of the TM in the keyword file was not "use in commerce".
A third jurisdiction, Michigan, sided with Vir. in the third WhenU case.
But this case is in Maine, so I guess it could go either way.