Beware Spyware
If you’ve ever happened upon a Web site where you’ve downloaded a free game, type font, screensaver or other type of cyber-goody—even taken a survey—chances are your computer now has a nasty little software “applet” that was implanted in it at some point during the transaction. You may or may not have been warned in the fine print that this thing was part of the terms of acceptance when you hit the “AGREE” button, but whatever you obtained “for free” did indeed come at a price.
It’s called “spyware,” and it sits idly around on your hard drive with the ability to execute a large number of things without your knowledge or consent.
Most often spyware performs marketing research functions by watching—and reporting—what sites you visit, with a particular interest in where you shop and what you buy. When aggregated and statistically analyzed, this data can say a lot about retail trends and shopping behaviors.
Other times, spyware is “awakened” by a particular Web site, resulting in those annoying pop-up ads seemingly designed to distract your attention to something someone has decided interests you more.
As first reported in our Week in Review column on May 21, L.L. Bean, one of the better-performing and best-designed apparel ecommerce sites online, filed complaints on May 17 in Portland, Maine District Court against four companies using “pop-up” advertising on Bean’s Web site, www.llbean.com. The four complaints, each filed separately, name Nordstrom, JC Penney, Atkins and Gevalia as companies that are trading on the L.L. Bean name through their use of spyware-enabled pop-up ad technology. Such a major legal filing could set a precedent that calls a halt to what Mary Lou Kelley, L.L. Bean’s vice president of e-commerce, terms “this parasitic form of marketing.”
Meanwhile, some newer Web browsers and Internet Service Providers say they are working to prevent pop-up ads. Yahoo’s new browser toolbar claims to expunge spyware from your computer, however eWeek Magazine reports that Yahoo’s filter specifically excludes the Claria/Gator software—the offending party in Bean’s complaint— from being prevented due to a “commercial bonding” between Yahoo and Claria/Gator.
In yet another pending suit, filed in San Francisco and dating back 2 years, Bean is also taking on Gator.com Corp., the company that makes this spyware. In Bean’s case, Gator.com’s “adware” caused some customers who called up www.llbean.com to be greeted by a pop-up ad offering a discount at www.eddiebauer.com, a direct competitor.
Bean mailed a “cease and desist” letter asking Claria and Gator.com to stop the pop-up ads, saying they “appropriated the goodwill associated with L.L.
Bean’s famous trademark,” created confusion for consumers and suggested that there was a connection between Bean, Bauer and Gator.com. (A similar filing against Gator was made a few weeks later in Atlanta by United Parcel Service.)
Gator.com responded by asking a federal court to rule that the company is within its rights to provide the ads to customers who use its E-wallet software, which automatically fills out Web order forms and saves password and credit card information for consumers in return for generating popup ads from time to time.
There are also novel jurisdictional issues in this California filing because Bean maintains no facilities in the state, yet its Internet sales within the state are significant.
“Bean plans to keep fighting,” said Rich Donaldson, a Bean spokesman. “We feel, in principle, it’s a trademark infringement and, if left unchecked, it does pose a considerable threat to the value of our brand and how people feel about our brand,” Donaldson said. “We are as concerned about the damage to the image of L.L. Bean as we are to lost sales.”
Donaldson added that it’s “taken a number of years for customers to feel that there are retailers out there that respect their privacy and build a secure Web site. The pop-ups that aren’t authorized by the site give people a creepy feeling,” he said.
Court dates, damages and litigation have not yet been set.
Site Review
Artist/Actress Lori Petty offers up a cool-looking Web site at www.lawdknows.com. Edgy graphics, smooth navigation and great photos combine to create a rarely-so-balanced showcase for a Fall 2004 “conscious living clothing” collection of pants, shorts and “conversational” T-shirts all featuring deconstructed finishes that translate particularly well online. Consumers get a list of 15 stores around the country (plus Scoop in Australia) and can download and print a full catalog via PDF if desired. The site was designed by Phoenix-based Meltmedia.com and employs Flash software to achieve a number of subtle, well-executed effects.
