Third Party Pop-Up Ads Article

My first published article reaches the printed page this week. You can now read the pdf version online. The article is intended to be an update on third party pop-up advertising litigation that has now become a widespread legal issue. Originally, I was just looking at the WhenU v. Uhaul case, which is the first pop-up case to reach a decision (summary judgment in favor of the pop-up advertiser). Things take a long time to get published though, and I had to constantly update the article as new decisions came down. The new decisions (preliminary injunctions only, no other final decisions) made things interesting; they seemed to go either way on almost exactly the same facts.
Thus, it’s an interesting issue to watch. I think my article is a good primer for the decisive months ahead.
You might also be interested in some of the other articles in the issue.

One thought on “Third Party Pop-Up Ads Article”

  1. I just finished a seminar paper on the pop-up litigation against whenu and the various legislative proposals. Fun, fun, fun.
    In the 1-800 Contacts and Wells Fargo v. WhenU cases, both of those courts granted summary judgment in favor of WhenU on the copyright claims (but only dealt with preliminary injunctions on trademark issues.) I think it’s possible to reconcile the overall results of those two decisions, based on the fact that 1-800 Contacts sued WhenU and VisionDirect, an advertiser (who also was typosquatting on the domain name), while no advertiser seems to have tried to game WhenU with the explicit intent to divert users from Wells Fargo sites. However, as far as whether the WhenU use constitutes a use in commerce, these two courts did go in entirely different directions.
    While I may try to get the paper published at some point, I will be posting excerpts at

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