FC: Can you cover ads on the web? Gator lawsuit seeks to find out

[Declan McCullagh <declan () well com>]

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From: rms () privacyfoundation org (Richard M. Smith)
To: "'Declan McCullagh'" <declan () well com>
Subject: Yahoo - Gator Sues Interactive Advertising Bureau -- IAB --
Date: Tue, 28 Aug 2001 20:20:23 -0400

<http://biz.yahoo.com/bw/010828/280331.html>http://biz.yahoo.com/bw/010828/280331.html

Tuesday August 28, 1:37 pm Eastern Time


Press Release

SOURCE: Gator


Gator Sues Interactive Advertising Bureau -- IAB --



Gator Asserts Legality of its Newest Ad Vehicle, & Accuses Association of 
Unfounded Accusations and Threats

REDWOOD CITY, Calif.--(BUSINESS WIRE)--Aug. 28, 2001--Gator filed a lawsuit 
Monday in federal court against the Interactive Advertising Bureau (IAB) to 
protect the right to utilize Gator's newest advertising vehicle, the 
Companion Pop-up Banner, which occasionally pops up to deliver a relevant 
advertisement in a window that floats over the banner advertisements on 
some web pages. The suit was brought in response to the IAB's unfounded 
accusations regarding the legality of this new advertising vehicle and 
their threats of legal action against Gator. The lawsuit seeks the federal 
court's declaration that the IAB's complaints concerning the company's 
Companion Pop-up Banner Windows are unfounded.

``The danger to the IAB's online publishers isn't Gator -- the danger is 
irrelevant advertising,'' said Gator CEO Jeff McFadden. ``Millions of web 
users are already ignoring 99.8% of current banners ads, and publishers are 
perishing at an alarming rate. We believe our proven targeting model can 
dramatically help to rejuvenate online advertising, so we refuse to allow 
the IAB to falsely claim that Pop-up Banners are illegal or to interfere in 
any way with our advertisers' right to deliver relevant advertising, or our 
consumers' right to decide for themselves what is or isn't displayed on 
their own computer screens.

``I can understand why the IAB, who represents our competitors, doesn't 
like our Pop-up Banner Windows, but their claims about its legality are 
utterly baseless,'' emphasized McFadden. ``As a leading web property 
representing over eight million users and 200 advertisers, we have a 
responsibility to aggressively defend the rights of all concerned,'' 
McFadden continued. ``We will vigorously defend our new Pop-up Banner 
vehicle, just as we have in the past year successfully defended our other 
ad vehicles.''

It's All About Relevance

Analysts say Gator's marketing tactics are extremely effective. In an 
August 10, 2001 ``Weekly Click Through'' report, Thomas Weisel Partners 
asserted, ``'Gatoring' just might be the most cost-effective -- and just 
plain effective -- way to reach consumers now, in our view.''

``The Gator model offers a powerful proposition to advertisers,'' stated 
McFadden. ``Our technology might, for example, anonymously recognize when 
one of our eight million users looks at minivans on an auto-maker's web 
site, and respond by displaying minivan ads in Pop-up Banner windows. Most 
web sites have no idea which of their visitors is shopping for a minivan. 
During the past year, Gator's pop-up vehicles and behavioral marketing 
engine enabled our Fortune 500 clients to enjoy click-through rates up to 
50 times greater than traditional online advertising.''

``Online banner advertising is broken, and it's time for publishers to stop 
applying the same rules and guidelines to online advertising that have been 
applied to offline mass marketing,'' stated Frederick Newell, author of The 
New Rules of Marketing, Loyalty.com, and most recently Wireless Rules. ``If 
Gator is willing to use their technology to help publishers deliver 
relevant advertising that is perceived as useful information to consumers, 
then those publishers will be doing the consumer a great service. We have 
to give the consumer what they want because the consumer is what this is 
all about.''

Is it Legal?

``We understand that Web site publishers want total control over what 
consumers see. We believe that the central issue is that every consumer has 
the right to decide what software they want to run on their own personal 
computer, and to decide what information they want to display on their own 
computer screen,'' said L. Scott Primak, Gator Director of Legal Affairs. 
``When consumers download Gator's free software they are shown an 
informational screen that clearly describes that they are getting our 
software at no charge and are allowing Gator to display advertising and 
information based upon the web sites they visit. The consumer must click a 
permission acceptance button to install the software.''

Gator's Pop-up Banner Windows are separate from the browser and don't 
modify the underlying browser window or the content of any web page. The 
consumer sees the site publishers' ad first, and can choose which ad to 
click. The consumer also can set the time delay or change the default 
location of the branded Pop-up Banner Windows. Like any other window, the 
consumer can drag a Pop-up Banner Window to a different location or click 
on the ``X'' to close the window. ``Consumer empowerment is a double-edged 
sword,'' said McFadden, ``because consumers can easily remove our software 
from their computers, we must continually deliver value to them if we want 
to retain them as Gator users.''

About Gator

Gator produces a suite of software that enriches the Internet experience 
for millions of users, and has built one of the world's largest in-context 
behavioral marketing networks. Gator has quickly become the leader in the 
online companion software space, assisting users over 100 million times at 
over 700,000 unique web sites each month. Gator's enterprise clients 
include the leading Fortune 500 advertisers in Automotive, Financial 
Services, Entertainment, Retail and Consumer Package Goods. Gator is a 
privately held company based in Redwood City, CA -- 
<http://www.Gator.com>http://www.Gator.com.

For interviews or more information contact A.J. Desjardins at Niehaus Ryan 
Wong, Inc., 650/827-7022, <mailto:aj () nrwpr com>aj () nrwpr com.

Contact:


     Niehaus Ryan Wong, Inc.
     A.J. Desjardins, 650/827-7022
     <mailto:aj () nrwpr com>aj () nrwpr com


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From: rms () privacyfoundation org (Richard M. Smith)
To: "'Declan McCullagh'" <declan () well com>
Subject:  Interactive Advertising Bureau -IAB- Asserts Gator.com's Business 
Practices Violate the Contract, Trademark and Copyright Interests of Web 
Publishers and Advertisers
Date: Tue, 28 Aug 2001 16:15:50 -0400
Message-ID: <002201c12ffe$3db2a100$0f01a8c0 () tiac net>
MIME-Version: 1.0
Content-Type: multipart/mixed;
        boundary="----=_NextPart_000_0023_01C12FDC.B6A10100"
X-Priority: 3 (Normal)
X-MSMail-Priority: Normal

This press release was just sent out today from the Interactive
Advertising Bureau (IAB) expressing their displeasure with the Gator
browser plugin.  Since the Gator plugin is working on a user's behalf,
there might be a fair-use argument to be made here.

Richard

================================================================

 http://biz.yahoo.com/bw/010828/282178.html

Unfair Competition and Deceptive Practices in Violation of Federal Laws

NEW YORK--(BUSINESS WIRE)--August 28, 2001-- Believing that the unfair
business practices of Gator.com substantially infringe on the trademark,
copyright and intellectual property rights of Web publishers and
advertisers, and do not adequately protect consumers from unauthorized
content, the Interactive Advertising Bureau (IAB), the leading voice of
the interactive advertising industry, intends to immediately pursue
options on behalf of its members with the appropriate federal agencies.

Gator.com is a company that offers a service that results in the
deception of consumers and advertisers and interferes with the valid
contractual relationships between Web publishers and their advertisers.
Its service - OfferCompanion(SM), software bundled with digital wallet
Gator - contains a feature, Companion Popup Banner, which obscures
advertising and/or editorial content on Web sites through the use of
specially designed pop-up windows and without the consent of Web sites
or innocent third party advertisers

``Consumers who choose to use the Gator.com software for various
services may not be aware that in return for these services, they are
allowing Gator.com to cover up advertising sold by the Web site with
advertising sold by Gator.com. The consumer has not replaced the
advertising by him or herself. Gator.com has done it, and is thus
presenting a false and misleading business relationship between the
sites and the substituted advertisers,'' said IAB President & CEO Robin
Webster. ``Additionally, they are combining sites' copyrighted content
with advertising which may not meet the quality and content requirements
of particular sites. We also believe that this service illegally
interferes with valid contractual business relationships.''

``Gator.com's practice of visually altering publishers' content and
obscuring the advertisements of unsuspecting advertisers, without
notice, substantially interferes with the contractual relationships
between Web publishers and advertisers,'' Ms. Webster continued. ``In
effect, Gator.com is falsely implying relationships that do not exist.
Publishers and advertisers who have chosen to be associated with one
another are having those relationships damaged and are suffering grave
financial harm by losing business opportunities. Consumers are similarly
being deceived by the company and are being denied the full experience
of the Web sites as intended by the publishers.''

The IAB supports its members' efforts to protect their intellectual
property and business relationships with their advertisers. It is
currently in discussion with a number of interactive advertising
industry organizations in urging appropriate governmental agencies to
investigate misleading business practices. The IAB welcomes the
participation of other parties in the interactive advertising industry
that are interested in protecting their intellectual property rights and
the advertising they have sold or purchased.

About the IAB

Founded in 1996, the IAB is the industry's leading interactive
advertising association. Its activities include evaluating and
recommending standards and practices, fielding research to document the
effectiveness of the interactive medium, and educating the advertising
industry about the use of interactive advertising. Membership includes
companies that are actively engaged in the sale of interactive
advertising.


------------------------------------------------------------------------
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Contact:

     FAVA PR
     Stu Ginsburg, 917/206-3088
     917/554-0725 -- cell
     sginsburg () iab net

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