LL Bean sues retailers over pop-up ads

[David Farber <dave () farber net>]

Begin forwarded message:

From: Stephanie <sjwinters3 () hotmail com>
Date: Wed May 19, 2004  3:05:14 AM US/Eastern
To: dave () farber net
Cc: dfarber+ () ux13 sp cs cmu edu
Subject: [IP] LL Bean sues retailers over pop-up ads

Dave, for IP if you wish:

http://www.pressherald.com/news/local/040518bean.shtml

Tuesday, May 18, 2004
Bean sues retailers over pop-up ads

By EDWARD D. MURPHY, Portland Press Herald Writer

L.L. Bean is suing four retailers in an escalation of the Freeport 
company's
battle over pop-up ads on its Web site.

The suit, filed Monday in U.S. District Court in Portland, names two
department store chains - Nordstrom and JC Penney - along with Atkins
Nutritionals and Gevalia, a mail-order coffee company. Bean is asking 
the
court for damages and an order barring the companies from allowing their
pop-up ads to appear when Internet users access the llbean.com Web site.

Bean blames "spyware" that it says is hidden in many innocent-seeming 
free
programs, such as one that claims to keep a computer's clock 
synchronized
with government atomic clocks. Those programs, offered on the Internet, 
also
track the sites a computer user visits, allowing the software to "pop 
up" a
client's advertisements based on the interests suggested by the record.

The suit says the pop-up ads annoy and frustrate Bean's customers and 
allow
competitors to profit off the company's trademark by making it seem 
that the
ads are sanctioned by Bean. The company's suit contends that computer 
users
don't understand that Bean has no control over the pop-up ads and isn't
making money off them.

The complaint against Nordstrom, for instance, says the Seattle-based
retailer "has usurped L.L. Bean's reputation and customer goodwill and 
has
caused thousands of advertisements to appear over and to obscure L.L. 
Bean's
Web site, forcing L.L. Bean to serve as an involuntary host to 
Nordstrom's
freeloading advertisements."

The other companies, spokesman Rich Donaldson said, are trying to "poach
business off the L.L. Bean Web site."

Spokespersons for both Nordstrom and Atkins Nutritionals were contacted
Monday afternoon and both declined comment, saying they hadn't yet seen 
the
lawsuit.

Bean's suit suggests it is taking a much more aggressive approach in its
battle against pop-ups, which has gone on for more than three years.

It started with a cease and desist letter that Bean wrote to Gator.com,
which later became Claria Corp. Gator.com had been offering a program 
to Web
users called eWallet, which promised to store computer passwords and 
credit
card information to make it easier to make online purchases. The program
also told users that it would pop up ads of interest as they used the
Internet.

When Web browsers typed in llbean.com, an ad offering a discount at
competitor Eddie Bauer popped up.

After Bean sent its letter, Bauer agreed to stop the ads, but Gator.com 
went
to a federal District Court in California asking for a judgment that 
what it
was doing was legal.

Marketing experts say the ads, because they are tailored to the sites 
that
users visit, are much more effective than random pop-up ads or banner 
ads
that appear on Web pages. Recent research found that 16 percent of 
online
marketing companies expected to use spyware this year, up from 10 
percent
last year.

The Gator.com case is currently tied up in procedural matters as an 
appeals
court considers whether the District Court in California has 
jurisdiction.

With the lawsuit filed Monday, Bean stepped up its effort by going 
after the
retailers themselves, rather than the marketers who offer the spyware 
that
generates the pop- up ads.

Peter J. Brann, the Lewiston lawyer who filed the suit, said he knows of
only a handful of instances in which the retailers have been targeted 
in the
lawsuits.

"L.L. Bean does not and has never employed similar techniques in its
marketing efforts," Donaldson said. The only pop-ups Bean has used are
surveys to ask Web users how they like the site and what improvements 
they
might like to see, he said.

Bean's suit says millions of computers have spyware and most Web users 
are
unaware that their own machines are generating the pop-ups.

A United Parcel Service survey used in a similar suit against Gator.com
found that four out of five computer users believe a Web site operator 
gives
approval for pop-up ads and almost three-quarters think the site makes 
money
off the ads.

The survey, conducted by Sorensen Marketing/Management, concluded that
computer users are confused about the source of many pop-up ads and that
consumers have negative perceptions about the operators of sites with 
pop-up
ads.

Donaldson said companies other than the four sued Monday generate 
pop-up ads
on the Bean site. He said the first suits are intended to send a message
that Bean will move aggressively to protect its site from the ads of
competitors and others.

"We're certainly prepared to defend L.L. Bean's good name," he said.
"Clearly, consumers hate these things and it really is a practice that
generates a lot of consumer confusion."



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