Judge Clamps Down On Gator
The firm is slapped with a temporary injunction in the suit brought against it by leading Web publishers.
The controversial Gator Corporation won’t be placing pop-up ads on a number of Web sites for a while, as a result of a temporary injunction handed down by a federal judge.
The injunction, granted by U.S. Judge Claude Hilton, comes in response to efforts by major online publishers to halt Gator’s practice of selling pop-ups that appear when a user of the company’s software visits a specific Web site.
Publishers suing the Redwood City, Calif.-based firm include the Washington Post Co. , The New York Times Co.
, Dow Jones & Co.
and Gannett
. They charge Gator’s practices infringe on trademarks and copyrights, and represent unfair competition and unjust enrichment.
The temporary injunction against Gator is good through the course of the case. The suit, filed last month in Alexandria, Va., also seeks a permanent injunction, damages, and the return of all of Gator’s revenue from the pop-ups.
“Today’s decision is an important first step for the plaintiffs,” said Terrence Ross, attorney for the plaintiffs. “This is only a first step in the legal process, but it sends a clear signal that the plaintiffs are likely to succeed on the merits of their claims against Gator.”
Since the preliminary injunction only bans Gator from placing ads on the plaintiffs’ sites, spokespeople for Gator said the company plans to continue business as usual throughout the proceedings.
The news is only the latest in a long dispute between Gator and online publishers. In the past, Gator has maintained that consumers willingly download their software — which provides free services like automatically entering users’ passwords and addresses into Web forms — and know that it also delivers pop-up ads by way of sponsorship.
More recently, the firm has said that the practice of displaying pop-up ads on a Web site operated by another party is a natural application of a fundamental part of modern graphical user interfaces — the same way that Microsoft Windows, Outlook, and other applications and operating systems display pop-up alerts and reminders.
But publishers have long contested that Gator doesn’t fully disclose to users that it will deliver ads in connection with its software nor that the pop-ups originate from it rather than, say, WashingtonPost.com. Last year, the Interactive Advertising Bureau alleged that those practices eroded consumers’ opinion of the Web publishers’ brands and hijacked their traffic.
Gator’s not the only one that could be in jeopardy through the lawsuit. Last month, Weight Watchers prevailed in a suit against a Gator advertiser that had been buying ads designed to appeared on WeightWatchers.com. The courts ordered that advertiser, DietWatch.com, to pay $25,000 in damages.
Still, despite the setback on Friday, Gator said it remains certain of victory in the case.
“We are highly confident that once all the facts are presented in the upcoming trial, no court will issue a ruling eliminating a consumers’ right to decide for themselves what is displayed on their own computer screens,” said Gator Chief Executive and President Jeff McFadden. “Such a ruling would attack a consumer’s right to use hundreds of popular software applications that automatically display separate windows while the consumer is surfing the Internet — ranging from the Gator e-wallet to AOL Instant Messenger to Norton Anti-Virus and Microsoft Outlook’s reminder feature.”
