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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."
i'm glad to hear that there are companies out there who are against acosting their customers with guerilla-advertising. i tip my hat...
Interesting...
Follow the money and go after the revenue, who woulda thunk such a plan could work!
There might have to be some reform on the internet advertising agencies' part here. Anyone know more about how they're set up?
With the way the court system works, the offending companies will be long gone - merged or bankrupt and IPv7 will be in beta before this practice is found to be a violation.
Maybe my grandkids will benefit.
Isn't this almost similar to getting yourself one of those membership-style "club cards" for supermarkets where they collect data on you, then print out coupons for products competing with those you've purchased? You know, the ones that print coke coupons when they ring up a pepsi. What will this mean to THAT industry? Will Pepsi sue Coke for advertising directly to their customers? I'm not sure that'll go over very well.
:)
In other news...I run Mozilla -- so what popups?
Spammers can always crall back under their rock.
Embarrass and FINE the companies that use spammers.
Steve
Just like with peer-to-peer file-sharing software, there's an interesting debate here about whether companies like Gator should be free to manufacture and distribute software that ostensibly causes damage to certain population segements. For P2P software, the damage is supposedly to the recording industry. For spyware, the damage is supposedly to the consumer and to companies whose brands are targeted by adware.
I'd hate to see the right to produce software get eroded, but on the other hand, something's gotta be done about spyware. This is an interesting approach: go after those that use the spyware (the companies that deliver ads through it) rather than those that vend the spyware. This has similarities to the recording industry going after those that use P2P to violate copyrights instead of those that vend P2P software.
But, my hunch is that displaying brand-targeting ads is a harder sell as illegal activity than distributing media you don't have rights to...
The idea that a website owner should be able to dictate what other information is on a computer screen while you are visiting their webpage is ridiculous. It would be like saying that I'm not allowed to have the llbean.com website open at the same time as the jcrew.com website... jcrew.com is unfairly competing.
I agree that spyware is a problem, but it's a problem that the user needs to deal with. LLBean has no right to tell me that I can't have Gator on my system providing me with ads for competing products, and they have no right to attempt to litigate such advertisements out of existence. I personally don't want to see those ads, and most people don't want to see them either, but I'll bet there are some people who are completely happy to have Gator infest their system and provide alternative options to LLBean.
This sort of thing makes me angry. Why don't they sue people over the content of background wallpapers that show competing products? It just doesn't make sense, they have no right to control the content of users computers and I hope they lose in court and lose big.
--
RumorsDaily
Anyone else hopeful that this will start a trend of companies going after those like Claria? I can't even begin to count how many times I'd had to bring a friend's computer back from the brink of uselessness because of spyware. Hopefully lawsuits like this will cause enough of a stir to end it, either through economic problems caused by the lawsuits, or outright banning through law (fingers crossed!). Are there any other high-profile suits in the works against such companies?
Popups and spam are the scourge of the internet.
Unfortuantly probably a sizable chunk of companies which advertise through this spyware crap aren't even aware thats how their ads are being displayed.
And if they are, its easy enough for the spyware companies to sign up for one of the many web page banner ad services and display those instead. The banner ad companies will not be immediately aware that a particular id is not being displayed on a web page, and is instead being 'pinged' by a victims comp. When they do become aware, its a simple matter of getting a new id and distributing it to all the compromised machines through their auto updating features they all seem to have.
I.O.U One Sig.
While I applaud LL Bean for taking an interesting tact here, I personally wish for their case to be dismissed.
There are a couple very important issues here...
Gator is NOT rewritting the actual webpage, it's only providing additional "pop-ups" in seperate windows that are targeted towards their "users" browsing habits. Essentially, they can claim they are providing a service by saying "ohhh, hey there lil user-buddy, looks like you're trying to buy a parka at LL Bean, perhaps we can interest you in this other parka over at Nordstroms", there is nothing wrong with that! Google does it all the time, Amazon does it... hell name one internet portal that does not provide alternatives based upon your current browsing parameters.
While I might not care for Gator/Claria/Satan, I do respect that until laws are passed that clearly define their behavior as illegal or somehow restrict their behavior and they defy those laws/restrictions, there is very little the courts will be able to do.
The users desktop does not become the property of LL Bean when a user goes to their website. Whatever happens on the desktop in a seperate window MUST be considered the consent of the user and LL Bean's claims should be dismissed as baseless.
Any action barring the display of competitors ads would threaten to destroy the advertising models of practically every internet portal in the US. and even more threatening... allow sites such as Google and Amazon to be flooded by lawsuits.
Nobody is trying to tell you what you personally can put on your screen. If you want to have Eddie Bauer's website open at the same time as LL Bean's, they won't know or care. When someone has built a business around the idea of leeching customers directly from another business's storefront, that's when they care. That being said, I think the burden of proof here will be fairly high, and I'm not sure that LL Bean can meet it, although I certainly hope they do.
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, discrimination against (fill in the blank), or sale of clothing that was dyed with alleged carcinogens? It is easy to applaud a method of speech when you also happen to dislike the (usual) message. Unfortunately, you may be creating a precedent so that method cannot be used to distribute any content.
Only Women Bleed (Sex, Sharia remix)
I agree, it should be legal for you to do this. What is in question, however, is whether it should be legal for LL Bean's competitor to pay someone else to make this happen on your computer in response to LL Bean's name. That, in my opinion, quite possibly should not be legal.
No, I'm serious. Consider this. They make software explicitly for the purpose of stealing costly visitors from websites. On the internet, that's the only "merchandise" that can be stolen. Visitors are just another, really expensive form of overhead.
But, if you don't want any of your competitor's popups appearing on your website, all you have to do is advertise with them (aka. paying your protection fee). But, doing this, you still look bad to everybody else, even though while spyware is still legal, you have no other recourse.
Doesn't that sound oddly like a protection racket to anybody else?
I've already had forums-admin friends talking about how they get all these posts from people asking "WHY ARE THERE POSTS IN MY ADS NOW?" when it turns out to be adware.
Then again, I suppose the "defamation" approach might apply to websites as well; maddox had a disclaimer recently that basically said "I did not get popups you morons, go download Spybot/Adaware and leave me alone."
The first spyware I ever "installed" had a little link at the bottom saying "This is a [company] offer and is not sponsored by the websites you are visiting." If the law gets involved in this scumware at all those should be mandatory.
Member of Orkut? Annoyed with spam?
Would I be right in saying that the First Amendment to the US Constitiution doesn't apply to corporations, only people.
When they came for the communists, I said "He's next door. Take him away. Goddam commies."
So what? Try applying your argument to the guy in the street with a loudspeaker at 2 a.m., to telemarketers, to someone spraypainting on your walls, to somebody inserting propaganda into school textbooks... The first amendment doesn't give people the right to do whatever they want.
How can we continue to believe in a just universe and freedom to eat crackers if we have no ale?
The basis of the suit seems to be claria "illegally trading on" LL Bean's name. But how do they know it's the LL Bean name that's triggering the pop ups? If the pop ups are triggered by keywords, wouldn't the kind of keywords on LL Bean's page tend to trigger their competitors? If that's the case, where's the basis of their suit?
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
That's going a little over the top. The lawsuit is about protecting their trademark. They are claiming that the ads are triggered by the phrase "LL Bean" which is in fact a trademark. And they are legally obligated to protect that trademark, or they lose it. And then any company can legally make clothes and put "LL Bean" on them.
The First Ammendment is not at issue here. Ever wonder why so many ads say "the next leading brand" and show a picture of a container similar to, but not identical to the brand they're referring to? It's because they're not allowed to use that brand's name in their ads. And in places where it is used, there's always a disclaimer that says "Product $foo is a trademark of company $bar".
It's about using a trademark in advertising and not acknowledging it. That's what LL Bean cares about. The spyware is a side issue.
That having been said, I don't think they stand a chance. The spyware will simply be modified to instead of look for "LL Bean" look for something like 'Outdoor clothing" and "Portland, Maine". Neither of which are trademarkable. And then LL Bean is SOL. I predict nothing useful will come of this.
There is no sig, there is only Zuul.
Hmm.. I've never been infected with spyware or adware, and I'm just a little bit astonished to find that well known corporations such as Nordstroms utilize these types of tools. I would love to have a list of companies using this type of stuff so I could choose to spend money elsewhere. If such a list does not already exist, someone should definitely create one.
It may take a while for LL Bean to see any actual money out of it, but that doesn't mean the lawsuit isn't a good thing for the rest of us: If LL Bean's suit doesn't get thrown out right away, Claria won't be able to sell other companies on the idea that this form of advertising is definitely legal. Corporate sorts aren't known for being big on risk generally, so this should cause a significant depreciation in revenue available to Claria.
paintball
You have a point there, but thats not the case in this situation. The argument L.L. Bean is trying to make is that Gator (I refuse to call it Gloria Corp) setup their pop-up program so that their competitor's advertisement would show up at their site.
Thats like saying, 'Welcome to L.L. Bean where you can fine products and clothes, but be sure to look at Gap's new shipment of jeans. Oh and J.C. Penney has a sale this week, you should take a look. Oh and since you're searching for shirts and ties, Nordstrom just announced a new line of this month check it out. Oh and enjoy your stay at L.L. Bean's website.'
First:
If a person visited "LLBean.com" and had advertising pop up, it would bge reasonable for them to conclude that LL Bean caused the advertising to pop up, since the site is llbean.com (trademarked) and LLBean is on the website.
If a competitor's coupon comes out of the receipt printer when you buy a product, it would not be a reasonable conclusion that the company which made the product caused the coupon to print out. As you can see, with the web pop-ups, there's damage done to the trademark (I get pissed that LL Bean is sending me popup ads when they're not), whereas with the coupons, there is no damage.
Second:
With the web popups, the trigger is LLBean.com - a trademark. With the coupons, the trigger is the UPC code, which is not trademarked.
paintball
Not only is the First Amendment of the United States Constitution probably not applicable in this context to corporations, but it's certainly not applicable outside the United States. Further, as noted below, freedom of speech doesn't mean "freedom to do anything you damn please". The oft-mentioned statement about not yelling "fire" in a crowded theatre (unless applicable to the situation) would apply in this case, in that doing harm purely for some form of personal (or corporate) gain can't be hidden under the first amendment rights cloak.
When I visit Google's site, and google serves me ads, my natural conclusion is that google is serving me ads.
If I go to LL Bean's site, and I get ads, my conclusion is that LL Bean is serving me ads. That's the damage to LL Bean's trademark.
paintball
What does pop up blocking have to do with it? I don't know what spyware is doing now, but once it's installed on the machine nothing stops it from doing "system("MOZILL~1.EXE www.somecrappysite.com");".
If the user installs the spyware, the spyware pretty much owns their machine (or at least their profile). It's not much harder for it to launch a Firefox window instead of an IE window. Linux won't help either, spyware can still accomplish it's goals without root permissions.
This may be obvious, but the reason most advertisers don't mention their competitor is because they don't want people thinking about their competitor during the middle of the ad that they paid for. Why give them free advertising?
"Was it a millionaire who said 'Imagine No Posessions?'" -- Elvis Costello