• by Ross Fadner , June 23, 2004

While providers of adware, or software-based marketing tools, continue to nudge their way into the reluctant embrace of online marketers, consumers have not been shy about speaking out against them, according to a company with an unusual--if unfortunate--experience with adware.

In 1995, media buying and accounting software provider ZML chose a new name that would one day become synonymous with an unrelated term that years later resulted in an untold amount of grief. The Louisville, Ky.-based company called itself AdWare Systems--a fitting name, considering that it produced advertising and accounting software.

Over the last several years, the spyware phenomenon has risen to the fore in the midst of a well-documented consumer backlash against the growing number of privacy and protections violations that pervade the Internet. "Spyware" denotes applications that users unwittingly download, in addition to other applications including screensavers, or toolbars. Software marketers offer these applications under the pretense that what they offer is free. In reality, these Trojan Horse applications actually deploy a program that tracks consumers' Web-surfing behavior in order to serve them targeted pop-up advertisements based on that behavior.

After the practice became frowned upon by the advertising community, some companies set out to legitimize the process by creating end-user licensing agreements that required users to agree to terms disclosing what these software-based marketing applications would do before downloading them. This "legal" practice has since been given the name "adware," much to the chagrin of AdWare Systems.

In early 2003, employees of AdWare Systems, now a subsidiary of the ValueClick network, began receiving puzzling phone calls from consumers, who asked them how to remove AdWare's software from their desktops. Bob Bruce, director of business development, AdWare Systems, Inc., recalls that "people would ask, 'Can you fix my desktop? I don't know how to uninstall your software.' We'd check and then realize these people weren't on our customer list."

Over time, Bruce says that the number of complaints grew and the tone of their messages grew "more and more irritated." In response, the company started writing letters to news publications including Dow Jones & Co.'s Wall Street Journal and MediaPost's MediaDailyNews, asking them to stop using the name "adware"--which it pointed out is a registered trademark--to denote software-based marketing companies.

AdWare also posted a disclaimer on its Web site, www.adware.com, pointing out that the company was in no way involved in adware or software-based marketing. As Bruce notes: "We would get two reactions: 'I'm sorry, I didn't know this,' or 'You're filthy liars, I don't believe you.'"

Bruce adds that often, angry letters and emails included "a lot of profanities." He recalls that one guy, who didn't believe the disclaimer, threatened to come to their office "and shoot the place up."

AdWare also received complaints from large corporations, including an investigation from the Better Business Bureau (AdWare was later cleared of charges). Bruce notes that AdWare also received a complaint from Xerox Corp. "I got a call from Xerox complaining about pop-ups over their Web site," he says. Once he explained the situation, he says that Xerox understood, as its brand has often been confused as a generic term for copy machines.

Similar instances abound in trademark history: tissue marketer Kleenex, cotton swab maker Q-Tip, Scotch tape--and of course, the most recent and perhaps the most relevant example, Hormel's Spam, which is now commonly used as a term for unsolicited email messages.

Bruce says that he has studied the defensive measures these companies have taken to protect their brands, which have included writing letters to news publications. The major difference between AdWare's situation and such everyday icons as Kleenex is that they benefited from the awareness of their respective brand names: "I don't know that we will," Bruce says.

Effective June 27, AdWare Systems will officially change its domain name to www.adwaresystems.com. The old domain name is being handed over to Spy Assassin, a company that produces software to get unwanted spyware and adware uninstalled from users' desktops.