9th Circuit says Gator / LL Bean "adware" lawsuit moot [priv]

[Declan McCullagh <declan () well com>]

-------- Original Message --------
Subject: Wrestling 'gators
Date: Sun, 20 Feb 2005 21:16:09 -0800
From: Leigh Meyers <leighcmeyers () gmail com>
To: Declan <declan () well com>


Courtesy of FindLaw:
www.findlaw.com

U.S. 9th Circuit Court of Appeals

GATOR.COM CORP. v. L.L. BEAN, INC. (02/15/05 - No. 02-15035)

A declaratory judgment action, initiated to determine the legality of a 
software
vendor's pop-up advertising program used on a website, is rendered moot 
by a
settlement under which the vendor permanently modified its software and the
website owner relinquished all claims.


<Synopsis by excerpt>

Gator.com Corporation1 is the proprietor of a software program that enables
computer users to store personal information—including addresses, credit 
card
numbers, and passwords—in a “digital wallet.”

When a website prompts the user for such information, Gator’s digital 
wallet
automatically inputs it. The program also provides users with discount 
coupons
and other special offers that “pop up” on the computer screen when the 
user visits
certain websites preselected by Gator.

Until November 20, 2004, one of the targets of Gator’s pop-up 
advertisements
was the website operated by L. L.Bean, Inc., a clothing manufacturer 
that sells
its products over the Internet, via a mail-order catalog, and in retail 
stores.

When a user of computer equipment on which the Gator software was installed
visited L. L. Bean’s website, the program triggered a discount coupon 
for Eddie
Bauer—an L. L. Bean competitor—to appear on the screen.

In a cease-and-desist letter sent to Gator in March 2001, L.L. Bean 
alleged that
these pop-up advertisements misappropriated the good will associated 
with its
trademark and threatened to initiate legal action if Gator did not 
discontinue this
advertising practice.

Gator responded by filing suit against L.L. Bean in the United States 
District Court
for the Northern District of California.

Gator requested a declaratory judgment that its program “does not 
infringe or dilute, directly or contributorily, any trademark held by 
[L. L. Bean] and does not constitute
unfair competition, a deceptive or unfair trade or...
<...>

1) Gator.com Corporation is now known as the Claria Corporation.
For ease of reference, it will be referred to as “Gator” throughout.
<...>
http://caselaw.lp.findlaw.com/data2/circs/9th/0215035p.pdf
======


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