WhenU Challenges Utah Anti-WhenU Law

This year, the Utah state legislature passed Spyware Control Act (H.B. 323). This law is intended to give website holders a recourse against adware providers such as Claria and WhenU.

The bill would:

• prohibit using a federally registered trademark to trigger an ad by someone other than the trademark owner.
• require user consent to a license agreement which includes a notice of:
  • the collection of each specific type of information to be transmitted as a result of the software installation;
  • a clear and representative full-size example of each type of advertisement that may be delivered;
  • a truthful statement of the frequency with which each type of advertisement may be delivered;
  • a clear description of a method by which a user may distinguish the advertisement by its appearance from an advertisement generated by other software services
• Allow the following types of persons to bring an action:
  • a website owner
  • a trademark or copyright owner
  • an authorized advertiser on an Internet website.

A number of web publishers who are not Claria or WhenU fear that this law is too broad: Leading Internet Providers Oppose Passage of Spyware Control Act

Web publishers and businesses including American Online, Amazon.com, Cnet, eBay, Google, Microsoft Corp., and Yahoo! signed a letter on March 1 to Utah Senate Majority Leader John Valentine and Representative Steven Urquhart, who sponsored the bill, warning that the bill--if signed into law--could create serious repercussions for the entire online community. According to reasons cited in the letter, the Spyware Control Act is structurally flawed because its definition of spyware is too broad. It states that several types of important and beneficial Internet communications software, and even routine network communications, fall under the bill's definition of spyware.

On Monday, WhenU filed a lawsuit alleging that the law " violates its constitutionally protected right to advertise, while doing little to protect computer users' privacy."

The Complaint (courtesy of Ben Edelman, via Trademark Blog)