Last week, a judge (whose name is almost “Bruce Lee,” which would be so cool) ruled in the highly watched WhenU versus U-Haul case. U-Haul charged WhenU’s practice of enabling advertisers to pop up ads when users visited its site was unfair and a trademark infringement. Grudgingly, Judge Lee sided with WhenU, noting consumers are the ultimate controllers of their own computers and participation in WhenU’s system is wholly voluntary.
I agree on the latter point, but the decision only grazes the surface of a complex issue. The ruling covers what’s displayed and when. The deeper issue is how consumer power over digital media changes the nature of the relationship brands have with consumers, and whether traditional notions about that relationship still dictate the rules of communications and engagement.
If we disregard the fact the ads appear in that most reviled format, pop-ups, the result of adware packages is an increase in the number of options a consumer has in relation to a particular desire. OK, I know we need to caveat that, saying an increase in choices results only from proper use of adware by providers and advertisers. There are scads of other issues adware raises (notably privacy) when wielded by the devious. Let’s just leave that aside for now.
Essentially, the adware philosophy is when a consumer types “U-Haul” in her browser bar, she’s requesting one of two things. She specifically wants to engage with the U-Haul company to get information or perform a transaction. Or, she’s using the brand name “U-Haul” as shorthand for “self-service moving.” Anyone who’s ever ordered a Coke at Taco Bell and been asked, “Is Pepsi OK?” understands this perfectly. The Taco Bell consumer is usually just ordering a cola to go with his Burrito Supreme, not making a specific brand request.
Let’s examine each scenario individually. In the first, we must assume the consumer has a strong enough desire to engage specifically with the brand. She’ll disregard offers to the contrary as just so much noise. American consumers encounter hundreds of commercial messages a day; it’s just one more bit of flotsam to swim through. In the other, WhenU essentially argues traffic is up for grabs. Competitive (or complimentary) offers are fully reasonable. The consumer only expressed category interest.
Do we buy it? This small distinction is the butterfly in the rainforest causing tornadoes in Tampa. Last week’s decision didn’t cover this, but I’m sure it’s coming. Possibly in one of the other cases pending against WhenU. Or in suits bound to rattle through the court system concerning search engine marketing (SEM), where many of these same issues reside in an entirely different form (no pop-ups to close).
In the traditional, linear advertising and marketing world, it’s moot. The burrito eater and self-mover are in quasi-captive situations. Their category interest can be converted by brand representatives in the moment, helping them move through their decision process. I say “quasi-captive” because, although the self-mover can elect to find another moving option, chances of that happening are slim. Online, no one’s captive to anything. That’s a primary reason for its success. People move between brands easily and fluidly, often with competing products and offers in the same window, thanks to companies such as DealTime.
This fluidity brings into question that binary distinction about brand/category interest. It’s handy for companies to think about consumers as either owned or not. The question is much more complex, however. A Taco Bell loyalist may appear a Pepsi loyalist, but that can be obscured by the decision’s context. Outside Taco Bell, he may only drink tap water.
An individual consumer more likely has a shifting sense of brand loyalty. If this is true, freeing consumers from imposed captivity may develop comparison desire. What appears to be brand loyalty may, in fact, be less solid than companies think.
Adware vendors need to deal with implementation. No one likes pop-ups. They’ve led over three quarters of the Internet population to say, “Ads get in the way of my online activities” (Jupiter Research, a unit of this site’s parent corporation). Second, distribution methods must be higher above board. WhenU claims a 70 percent drop-off rate. I believe this results from people’s surprise at the software’s presence when they think they’ve only downloaded a screensaver.
Third (and most important), adware vendors — and advertisers and brands — must question the implications of the way their software changes the nature of brand relationships. Assuming this is a precedent-setting case and future challenges will look back to this decision, the practice will be determined to be fair and legal. That means it will be a part of brand and marketing strategy.
The time for a more complete adware discussion is now. With WhenU’s recent and upcoming verdicts, the “just hate it” stance isn’t adequate for a fragmenting communications landscape.
Nurcin Erdogan Loeffler, head of strategy and innovation, Vizeum China, outlines the seven ways businesses can future proof their digital strategies.
Chief marketing officers have shared their views on technology, innovation and how they see their roles transforming into the near future at an ... read more
Every brand would love to see its hashtag trending on social media, but what if it’s for the least expected reason? Should you ... read more
In today's multichannel world how can marketers use data to ensure the experience a customer receives is relevant to them?