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  1. #1
    Defender of Truth, Justice and the Affiliate Way
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    Exclamation WhenU Wins Appeal in 1800Contacts Case
    http://news.com.com/Court+gives+adwa...3-5766583.html

    This is a very significant legal decision. It is a win for not only WhenU but for others who trigger their ads from other domains/trademarks.

    "We hold that, as a matter of law, WhenU does not 'use' 1-800's trademarks within the meaning of the Lanham Act when it includes 1-800's Web site address in an unpublished directory of terms that trigger delivery of WhenU's (ads) to computer users," according to the ruling.
    and

    In Monday's court filing, the judge said that because WhenU did not use the plaintiff's trademark in ads, nor openly sell the trademark name as a trigger word, it was not in violation of the law.
    The decision seems to hinge on the method in which WhenU has set up ad buying internally. Of course, the end result remains the same. A domain/trademark triggering an ad most likely to a competitor's site. And that practice has just been given the green light legally.

    Legal experts say it's ultimately a win for consumers.
    I strongly disagree with this statement and it obviously is made through a limited understanding of the adware issues and/or by someone who has their own agenda for adware companies to continue to practice in their current state. Of course the legal opinion quoted right under that statement was by Eric Goldman Marquette University Law School who did a brief in support of WhenU.

  2. #2
    Resident Genius and Staunch Capitalist Leader's Avatar
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    That sucks. I hope 1-800 goes to a still-higher court!
    There is no knowledge that is not power. ~Hemingway

  3. #3
    Defender of Truth, Justice and the Affiliate Way
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    Trademark was always a very tenacious approach to take in these filings. It was a likely loss by some here years ago.

  4. #4
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    What a load of crap filtered through the idiot minds of lawyers. Only the registered trademark owner can legally authorize the use of their "trademark" for promotional purposes. A intrustive WhenU popup containing one sentence promoting only a competing merchant, triggered by the trademark holders URL or actual use of the mark on their pages, IS a violation. The action by WhenU's application and ebiz plan, coupled with the intent and payment by the unauthorized trademark violator, is entirely based upon stealing business from those placed on that trigger list. In a friggin Coke vs. Pepsi commercial the two trademarks have strict libel and truth in advertising guidelines to follow when trying to influence brand choice.

    WhenU's competing popup has only one purpose ..hijacking the trademarks traffic to a competing enity. Legal idiots who can't apply real world legal logic to online advertising trickery. Bet the ambulance chasing lawyer scumbags would raise holly hell if a competing firm paid a BHO to popup a simple message " Call 1-800 111-1111 now for a free consultation... or click here" on their targeted web site.
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  5. #5
    Lite On The Do, Heavy On The Nuts Donuts's Avatar
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    "WhenU has defended its practices by saying that it does not allow marketers to openly buy ads based on rival trademarks. Rather it uses an internal system, containing different Web site addresses and keyword search terms, to randomly display ads that are relevant to a Web surfer's actions"

    This is total bullshat.

  6. #6
    Lite On The Do, Heavy On The Nuts Donuts's Avatar
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    "In Monday's court filing, the judge said that because WhenU did not use the plaintiff's trademark in ads, nor openly sell the trademark name as a trigger word, it was not in violation of the law."

    Why is the word "openly" in there?

  7. #7
    Lite On The Do, Heavy On The Nuts Donuts's Avatar
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    If they use my trademarked name as a trigger word, can I bust them?

  8. #8
    Lite On The Do, Heavy On The Nuts Donuts's Avatar
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    It's becoming apparent to me that judges are not spending time on the Internet.

    Put a jury on this, have Ben explain how it works in plain language and arrest these ashwipes as they walk out of the courtroom.

  9. #9
    Lite On The Do, Heavy On The Nuts Donuts's Avatar
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    Can I walk into a McDonald’s restaurant, grab a booth, and proceed to give away free Burger King Whopper coupons to folks as they eat? No, because the business McDonald’s doesn’t allow it. Arguing about whether the patrons want the coupons or not, is irrelevant. If patrons want coupons, they can go get them elsewhere. The business owner, the McDonald’s brand owner and the owner of the real estate property, have rights. These rights, among many others, include refusing to allow third-party advertising to occur on their premises.

    So where then, is advertising legit? Answer – wherever the media owner (website owner or book publisher or television network or billboard sign owner) sanctions it. Google decides what ads it shows on its site. Using AdSense and other ad delivery vehicles, a website owner agrees to show ads on their website that they have authorized. A newspaper has the right to decide which ads it shows and where it shows them. NBC has the right to determine what ads it shows. In fact, some media owners exercise their right to show no ads at all. And while my own websites are not as entertaining or polished as NBC, I assert the quality and quantity of my site, is not a factor in determining my rights – even the Lifetime Network gets to decide which ads they show.

    Our rights as website property owners are not being recognized. In my opinion this is because the courts keep thinking that because someone INSIDE THEIR HOUSE can visit my web property, the courts think the homeowner owns it somehow. They are just a visitor at my site, regardless of where their PC is located.

    The consumer should not be able to decide how my content can be used to trigger advertising anymore than they could do the same to the tv and radio signals pumped into their homes.

    My website is my content. Just like NBC's content. And I (or NBC) get to decide which ads run off of it.

    Let’s say I create a new business called Zongaz where I give my customers a free 50” HDTV for their living room, in exchange, they agree to allow me to install a box downstream of their cable/satellite receiver that inputs to their HDTV. My box can do many things – it can replace the ads shown on NBC, with other ads that my new company gets paid for. It can also sense the show you’re watching, and deliver targeted relevant ads, superimposed right over the show you’re watching. So you’re watching Friends on NBC, and the Zongaz box opens a picture-in-picture window over the top of the show and offers an ad to sell you the furniture you’re seeing on Friends. Or the Zongaz ad shows you an ad for a show on CBS that competes with Friends. The consumer loves their HDTV and can click a button on their remote to close the Zongaz ads if they so choose. Can I start this company? Sure. Can I find willing customers? You bet. So what’s wrong with this idea? NBC didn’t agree to it – that’s what. NBC creates the show Friends – they own it. You cannot materially alter it, link to it, replace it, adulterate it, manipulate it and mess with it! It isn’t yours! It doesn’t matter how much you love your Zongaz HDTV (or toaster), this is not a legitimate business model. Why? Because it infringes upon NBC’s rights of ownership! If however, NBC had an agreement with Zongaz, it would be legitimate. NBC has nationally and locally syndicated advertising sponsors (buyers of ad space) already. They could certainly and willingly enter into an agreement with Zongaz to do this. But if Zongaz proceeds without even contacting NBC, what happens? NBC sues them and easily wins.

    Why are we losing? Because the courts remain unfamiliar with the Internet. They're old dudes. They understand TV and Radio signals. They think the Internet is different. From the perspective of advertising, it is not. It is content, pumped over wires and airwaves, that enters a home BUT REMAINS THE INTELLECTUAL PROPERTY OF THE CREATOR / OWNER.

    Somebody make a video of the hypothetical Zongaz company and see if the court would allow it? The time and money and effort (and the ownership rights therefore afforded) to create content and to also attract an audience is being completely disregarded by the courts.

    This will have far reaching effects for the digital future. I hope that 1-800 contacts continues this fight to the next level. To those of us who build sites, content and work to attract an audience, it is eminently clear that WhenU's "acceptable" practice are tantamount to theft.

  10. #10
    Defender of Truth, Justice and the Affiliate Way
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    Why is the word "openly" in there?
    It would seem "openly" was somewhat of a key to the decision. I would guess this based on the info in the article:

    WhenU has defended its practices by saying that it does not allow marketers to openly buy ads based on rival trademarks. Rather it uses an internal system, containing different Web site addresses and keyword search terms, to randomly display ads that are relevant to a Web surfer's actions.
    Donuts said:
    If they use my trademarked name as a trigger word, can I bust them?
    Looks like you'd have quite an uphill battle now to do so. From the sniplet of the ruling it seems that it's not the fact the trademark was used as a trigger but rather how the ads were sold by WhenU. A subtle but obviously important distinction. It is difficult to really know the total implications of the ruling without seeing the whole legal document of the ruling.

    WhenU long ago began encrypting files associated with software including their data files after public talk about those files and contents. It seems keeping that kind of knowledge close to your vest and not made known until court time would be a more helpful approach. The hurdle of 'proof' becomes much more difficult for those bringing the suit when getting down to the nitty gritty is obviously did in this case. You then have to go the road of reverse engineering (which is actionable by the software company) or attempting to obtain the information via discovery. I seem to recall that WhenU was able to block some discovery attempts in the past based on their right to proprietary information. It might have been Claria, but someone went down that motion road.

    Our rights as website property owners are not being recognized.
    No they aren't.

    This will have far reaching effects for the digital future.
    I think it will also.

    I hope 1-800 goes to a still-higher court!
    That was my initial reaction when reading also. Someone correct me if I'm wrong, but since this was Federal Appeals Court I think the next stop would be the Supreme Court. Even if 1800Contacts would be willing to go down that road and expense and the Supreme Court would hear the case, I don't think this is a case I'd want to see go before the Supreme Court. I don't think it was ever a strong winnable case as brought. IMO too risky of the Federal Appeals Court decision being upheld by the Supreme Court.

    I'd much rather see a new case brought forth under grounds with a better chance of winning.

  11. #11
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Major merchants at Linkshare, now 180Solutions -WhenU & Gator are banned, need to create a pooled legal team to go after these scumbags with a rock solid case. Oh ...I forgot. Most major merchants want the cake ...and eat it too. They condone paying to advertise on their competitors sites to hijack sales. Pathetic boardroom ethics.
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  12. #12
    I like traffic lights
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    Ethics - exactly. It may have been found legal to do it, but it's certainly not ethical.

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