WhenU Stages Victory Over Wells Fargo, But May Get U-Hauled Back To Court
The 66-page decision, handed down Wednesday morning by Judge Nancy G. Edmunds of the Eastern District of Michigan, denied a request by Wells Fargo and Quicken Loans for a preliminary injunction against WhenU. The companies wanted WhenU to stop serving ads for competing loan and other financial services while desktop software owners were on the Wells Fargo site.
Testimony in the case had been heard over the summer in Detroit. Edmunds found that WhenU's software, which downloads an ad-server when users request its software, doesn't infringe on Wells Fargo's trademarks. The pop-ups are identified as WhenU's and don't have to do with Wells Fargo at all, the judge said. Although the injunction was denied, it's unclear what bearing this decision will have on the case against WhenU. Wells Fargo and Quicken Loans couldn't be reached for comment Wednesday afternoon.
It was WhenU's second favorable ruling since September, when U.S. District Judge Gerald Bruce Lee ruled that WhenU's advertising techniques - including but not limited to pop-ups - don't violate trademark laws. The suit had been brought against WhenU by U-Haul, which complained that its customers would be confused with WhenU content on the screen while they were interacting with U-Haul's Web site. The judge in the U-Haul case ruled that even when the pop-ups cover or appear next to content from other Web sites, they aren't violating trademark laws.
A U-Haul spokeswoman told MediaDailyNews on Wednesday afternoon that it was preparing an appeal, with the next court date in January to determine the appeal process. She said U-Haul's attorney in the case had seen the Wells Fargo decision.
"He does not think it will have any effect on the U-Haul case," the spokeswoman said.
The judge in the Wells Fargo/Quicken Loans case went even further than the justice in the U-Haul case, Wednesday, dismissing a key part of Wells Fargo's argument.
"Plaintiffs have failed to come forward with concrete evidence of even a single customer or potential customer who failed to purchase products or services from them because of WhenU," Edmunds wrote in her decision. In fact, Edmunds said that Quicken Loans had benefited from traffic driven to its parent company Intuit by a sibling unit, Turbo Tax, which uses WhenU to advertise.
At the same time, Edmunds said that the only company that would be harmed by an injunction would be WhenU, which she said would lose millions in revenue, even if the case was eventually settled in WhenU's favor. Several advertisers, including American Express, Bank of America and General Motors, have dropped WhenU campaigns due to concerns about litigation.
"A preliminary injunction could also chill the efforts of other companies seeking to develop forms of 'push technology' - technology that delivers information to the desktop without need for consumers to make an active request each time they see the information," Edmunds wrote.
Avi Naider, chief executive officer of New York-based WhenU, said Wednesday afternoon that it's incorrect to think of this case as solely about pop-ups. He said that through WhenU's desktop software application, Save Now, it's not only pop-ups that are served but also a variety of other formats, including banners and text links. He said that the pop-ups have been shown to work, offering advertisers targeting with "100 percent client privacy protection and infinite flexibility." WhenU's advertisers include J.P. Morgan Chase, Panasonic, Cingular and Kraft Foods. He said that WhenU's approach is to deliver relevant messages based on consumers' interests.
"It's only shown to customers that have expressed interest," Naider said. "The opportunity for desktop advertising in principle is tremendous, and WhenU believes very, very strongly that it is going to be a large part of the future of Internet advertising."