On June 24, 2003, a federal trial court granted partial summary judgment against U-Haul's lawsuit contesting the technology that enables competitors' pop-up ads to be displayed during visits to U-Haul's and other companies' Internet sites. The case is U-Haul International, Inc., v. WhenU.com, Inc., et al. Civ. Act. No.03-1469-A (E.D. Va.) (Judge Gerald Bruce Lee). 

    The sole plaintiff, U-Haul International, is represented by Richmond's Sands, Anderson, et al., and the Los Angeles firm of Jeffer, Mangels, et al. The defendants are WhenU.com, which is the company that provides the pop-up technology; Avi Naider; Budget Rent A Car System, Inc.; Moversbay.com; Door to Door Storage; and Conductive Corporation. The defense lawyers are Washington, DC's Hale and Dorr, LLP, and Lutzker & Lutzker, LLP. 

    U-Haul's complaint alleges copyright and trademark infringement, and trademark dilution, due to pop-up ads appearing during visits to Internet pages that contain U-Haul's intellectual property. The lawsuit also alleges unfair competition for allegedly misleading the plaintiff's visitors that U-Haul has a contractual relationship with the competitors who appear on the pop-up ads. U-Haul further alleges misappropriation of advertising content and interference with prospective economic advantage, and unjust enrichment. Finally, U-Haul alleges a violation of Virginia's Business Conspiracy Act, claiming that WhenU.com's pop-up ads amount to a scheme to willfully and maliciously injure U-Haul's business. 

    The successful summary judgment motion of defendants WhenU.com and Avi Naider insists that the defendants did not unlawfully misuse any intellectual property, seeing that the pop-up ads do not contain any reference to U-Haul and do not contain any of U-Haul's intellectual property. Instead, the pop-up ads for U-Haul's competitors show up for Internet users whose computers contain technology that enables WhenU.com's pop-up ads to appear. 

    On June 24, 2003, the trial court granted summary judgment against all of U-Haul's claims, except to permit U-Haul to re-file its claims of misappropriation, interference with prospective economic advantage, unjust enrichment, and violation of Virginia's Business Conspiracy Act. U-Haul has not yet re-filed those issues. The trial court issued its two-page summary judgment order without any explanation for its decision, other than to confirm that its written reasons are forthcoming. To monitor the date that the trial court issues its opinion, which has not yet been filed, subscribe to and visit the court's docket through PACER (http://www.pacer.uscourts.gov). 

    Meanwhile, WhenU.com is also defending against pop-up ad lawsuits filed in June 2003 by Overstock.com, Wells Fargo and 1-800-contacts.com. Another pop-up ad company, Gator Corporation, is defending against consolidated lawsuits against its pop-up ads. The Gator litigation is being handled by the Judicial Panel on Multidistrict Litigation in Washington, D.C.

Jonathan L. Katz is the First Amendment Defense law partner at Silver Spring, Maryland's JON KATZ, P.C.. He is President of the Free Speech Coalition of the District of Columbia, Maryland, and Virginia, Inc. Jon can be reached at jon[at]katzjustice[dot]com.

NOTE: This article first appeared in the August 2003 Media Law Letter of the Media Law Resource Center, to which Jon Katz belongs. Jon is on the Media Law Letter Committee. JON KATZ, P.C., maintains the copyright to this article, and the MLRC also maintains authorization for reprinting the article. See Jon Katz's follow-up article on this topic here. 

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