Weight Watchers Files Second Pop-Up Suit

Weight Watchers International is heading back to court for a second time against an advertiser using pop-up advertising served by firms including WhenU.com and The Gator Corporation.

In the latest complaint, Woodbury, N.Y.-based Weight Watchers filed suit against DiscreetDrugs.com, a prescription drug e-commerce site.

The complaint, filed Tuesday in U.S. District Court in the Southern District of New York, charges that DiscreetDrugs.com delivered unauthorized ads for diet drugs, including Phentermine, Adipex and Meridia, to some Web surfers who visited WeightWatchers.com.

Redwood City, Calif.-based Gator, the better-known of the two software companies alleged to be responsible for the ads, makes free time management and Web forms helpers, installs its Offer Companion ad-serving technology on users PCs along with the tools. Similarly, New York City-based WhenU makes software that delivers special deals related to users’ Web surfing.

Since users might not realize that the ads originate from the software — and not WeightWatchers.com — Weight Watchers’ lawsuit charges that the pop-ups infringe on and dilute the Weight Watchers trademarks, and unlawfully trade on the company’s brand.

In addition, Weight Watchers said the ads imply that it endorses the diet drugs and DiscreetDrugs.com — particularly irksome to the firm, since it does not advocate weight-loss drugs as part of its program. (WeightWatchers.com also said it neither solicits or accepts advertising from drug manufacturers or retailers.)

“These ads contradict Weight Watchers position on diet drugs,” said Robert Hollweg, chief counsel at Weight Watchers. “They do not belong on our site and their presence is illegal, deceptive and confusing.”

In the suit, Weight Watchers asks for an injunction against DiscreetDrugs’ owner, Davis, Florida-based USA Prescriptions, from running the ads. Weight Watchers said it has previously tried to dissuade DiscreetDrugs from running the ads.

USA Prescriptions’ attorney William Hill said the company hasn’t seen a copy of the suit, but that it plans to file an “appropriate response” once it’s had a chance to review the allegations.

The move is the second suit by Weight Watchers against an advertiser using such technology. In June, the company succeeded in a suit it brought against rival weight-loss program DietWatch.com, which ran ads delivered by Gator that appeared when users visited WeightWatchers.com. The victory awarded damages and an injunction to Weight Watchers.

Last week, United Parcel Service became the most recent firm to sue Gator directly, charging the firm with trademark dilution stemming from pop-ups — including ads for rival FedEx — that appeared when users visited its site.

UPS’s lawsuit joined a suit filed in June by several major publishers that seeks damages and an end to Gator’s practices of selling ads triggered when a user visits their Web sites. The attorney handling that case, Terence Ross of D.C.-based law firm Gibson, Dunn & Crutcher, also is serving as an outside counsel to Weight Watchers.

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