GATOR's allowed in court room!

[SiteTutor]

Publishers of Web Sites File Suit to Stop Pop-Up Ads
By BOB TEDESCHI


group of 10 Web site publishers is suing Gator, an online advertising and information storage company, to stop it from placing pop-up ads over their sites without permission.

The publishers, which include the Washington Post Company, Dow Jones & Company, Tribune Interactive and The New York Times Company, filed suit on Tuesday in United States District Court for the Eastern District of Virginia.

A spokeswoman for Gator, Mandy Mladenoff, said last night that the company had issued a statement that it was considering a countersuit against the publishers.

The suit against Gator maintains that its pop-up ads violate both copyright and trademark laws and that they allow Gator to profit unjustly from the user traffic generated by these Web sites.

Gator's eWallet software helps consumers fill out password and shipping information and remembers it as they visit different Web sites. But the software comes bundled with technology that displays pop-up ads over Web sites visited by Gator users. Thirty-three million Gator users viewed such ads last month, according to Media Metrix.

Sometimes those ads display ads for direct competitors of the sites being visited. For instance, the complaint contends that some Gator users saw an ad for the online employment site HotJobs.com when they visited Dow Jones' CareerJournal .com.

When one of Gator's pop-up ads appears over a publisher's Web site, "the inference consumers make is that the publisher has authorized it to be there, so it must be legitimate," said Terence Ross, a Washington-based lawyer with Gibson, Dunn & Crutcher, which is arguing the case on the publishers' behalf. But that practice, he said, constitutes a trademark violation.

Gator issued a written response to the suit yesterday, saying that the publishers' contention that software programs cannot lawfully display pop-up windows is "ridiculous."

"It would mean that AOL Instant Messenger, Yahoo Messenger, Microsoft Outlook, and dozens of other software applications that automatically display information in separate windows, are illegal," said Gator's chief executive, Jeff McFadden.

On its Web site, Gator informs customers that its OfferCompanion software "delivers advertising, information and software based on Web sites you view" and is included with the password software.

Mr. Ross, the publishers' lawyers, said such messages were not effective enough, and he pointed to surveys, conducted by the plaintiffs, showing that 16 percent of Gator customers did not know the service placed ads on their computers.

In the last two years, Gator has filed several lawsuits in California against companies and organizations that complained about its online advertising technology.

Because little case law has been created along these lines, "this is an important case," said Jeffrey D. Neuburger, a partner with the New York law firm of Brown Raysman Millstein Felder & Steiner. "This sets a precedent for guiding the use of emergent technologies in the advertising market."

The publishers are seeking a preliminary injunction to prevent Gator from delivering pop-up ads to visitors to the plaintiffs' Web sites while the trial continues. Ultimately, the publishers want that remedy made permanent, along with monetary damages for advertising revenue Gator made on their Web sites and punitive damages.