March 26, 2004 11:54 AM PST
German court: Pop-ups need permission
The injunction, announced Friday by plaintiff Hertz Autovermietung, the German division of Hertz, is the latest victory for companies that oppose the unauthorized use of pop-ups on their sites.
The Court of First Instance in Cologne, Germany, ruled March 12 that Claria had violated sections of a German law against unfair competition. Claria and others, such as WhenU, distribute software commonly called adware or spyware that monitors Web-surfing behavior and delivers targeted ads that pop up as windows on the computer screen. The programs sometimes wind up on PCs without their users' knowledge, because they come bundled with other programs, such as file-swapping applications.
"Gator's unsolicited pop-up ads constitute an unwarranted intrusion that disrupts Hertz's ability to do business with online customers," Remy Keijzer, Hertz's general manager in Germany, said in a statement. "We are gratified that the court in Cologne has recognized that Hertz and its online customers are harmed every time these ads appear, often without the full knowledge and consent of individuals who may have inadvertently installed Gator's adware, or spyware, on their home computers."
When users clicked to Hertz's Web site, those that had Claria's adware installed would see pop-ups from Hertz competitors and other businesses, said Richard Broome, a Hertz spokesman.
In making its ruling, the court ordered Claria to immediately halt the placement of software-controlled automatic advertisements on Hertz's Web site without the Hertz's permission. Claria could face a fine of up to $302,325, or six months in jail, for each violation of the order.
Claria declined to comment.
Claria is not alone in facing court challenges. Last December, WhenU was hit with a preliminary injunction that barred it from serving up pop-ups to visitors of 1-800-Contacts' Web site. A U.S. District Court Southern District of New York judge cited trademark violations in handing down the ruling.
That marked a shift from earlier court cases, in which WhenU prevailed. In November, a federal court judge in Michigan dismissed Wells Fargo's lawsuit to block WhenU's pop-ups, noting that those users who received the ads had consented to have the adware installed on their computer, in exchange for free software from WhenU. And a similar situation occurred in September, in a case that pitted U-Haul International against WhenU. A Virginia U.S. District Court judge ruled in WhenU's favor.