Popping Fresh

GigaLaw: Roundtable Discussion: Pop-Up Ads and the Law

Pop-ups and banner ads are the bane of many Internet users and the boon of companies trying to pitch goods and services. They're also the topic of a number of suits in courts around the country, because when such ads use a search for one company's trademarked term to point potential customers toward a rival, it's potentially trademark infringement.

But what separates mere nuisance from something that's legally actionable? Does timing -- whether a competitor's pitch pops up before or after a consumer makes an online purchase -- matter? What if the pop-up or banner ad clearly identifies the company it serves? How does the consumer's likelihood of confusion come into play? And what First Amendment issues could be triggered if courts choose to squash pop-ups?

I'll have a more substantial post on this issue once I get the seminar paper I am writing about it squared away...