By Alan Gahtan - December 10, 2002
E-Commerce on the Internet now has a new threat to contend with – getting Gatored. The term is derived from the name of one of several browser help applications which can be used to divert consumers from one site to a competitor’s site. For example, while a user browsing information at American Airline’s website may may be presented with a pop-up advertisement for Delta and an invitation to click on a button which will take the user to the Delta website.
Gator, which launched in April 1999, has built a user base of millions of active users. Some users have downloaded and installed Gator directly. Others have “acquired” the software as a piggyback to other software they downloaded (such as Gozilla and WeatherBug).
The bundling has caused concern among some consumers who say that the programs are sometimes downloaded and installed without adequate notification. While notice is given in the lengthy terms of use and licensing agreements that must be agreed to prior to downloading, the terms of such click through agreements are seldom read. There is also concern that the program may track the sites visited by users and then send the information back to Gator which can resell such information to advertisers.
Programs such as Gator provide users with many useful features such as password management, form filling functionality and price comparison capabilities. However, Gator’s controversial aspect relates to pop-ups containing advertisements for competitors that are sold based on keywords found on the websites being visited. Subscribers of certain Digital Cable services may be familiar with the cable industry equivalent – tuning in CNN will display an icon with news from MSNBC (along with a subtle message to visit MSNBC for more information).
The pop-ups can be annoying and disruptive. In addition, if such programs catch on, they likely devalue online advertising used to support many free websites and consequently may pose a threat to the many advertising supported informational websites.
The selling of ad space linked to trademarks and company names, pioneered by search engines (such as Excite) and Internet directories, has been the subject of trademark suits. In 1999, Playboy filed a Motion for Preliminary Injunction against Excite and Netscape to prevent them from keying banner ads for adult sites when visitors searched for the term “playboy” or “playmate”.
In Playboy Enterprises Inc. v. Excite Inc. SA CV 99-320, June 24, 1999 (C.D.Cal.), Playboy complained that Excite was infringing and diluting its registered trademarks Playboy ® and Playmate ® by (1) selling the keywords to other advertisers; (2) programming banner ads to run in response to searches including the keywords "playboy" and "playmate"; and (3) displaying banner ads in response to these searches. Playboy claimed that Internet users were being diverted from its official Web site to the Web sites of these other competitors.
Although the court denied Playboy’s request for a preliminary injunction, Playboy has appealed the decision to the 9th Circuit Court of Appeals. A similar suit filed against Excite by Estee Lauder resulted in a settlement. Gator has rekindled the keyword debate and will likely spawn a number of new lawsuits.
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