The Law, Technology, and Success (So Far) of Pop-Up Ads

According to Thomas C. Morrison's article entitled "Is Your Company Being 'Gatored'?," Gator has boasted that over 35 million people actively use its "OfferCompanion" software, the success of which can be measured by the "click through" rate, i.e., the percentage of those users who, when confronted with a pop-up ad, actually click through to the website of the pop-up advertiser. With respect to the travel industry, the average click through rate for pop-up ads was 10%. Individual advertising campaigns were said to yield click-through rates that were as high as 24% (travel), 26% (credit cards), 29% (automotive) and 48% (house-hold products).

Like Gator, WhenU offers consumers a variety of free software programs that are bundled with a spyware program known as "SaveNow". Testimony in one of the WhenU lawsuits disclosed that approximately 25 million people are active SaveNow users. Ironically, while over 100 million people have at one time downloaded the SaveNow software, 75 million of them have uninstalled it.
Several lawsuits have been filed against Gator and WhenU leading to several decisions, However, none of these cases has proceeded to trial and no decision has been reviewed by an appellate court. The results to date are presented in his article.

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