Pop-Up Ad Strategy Summary

A chart in the August 2004 issue of Modern Practice summarizes the results of four pop-up advertising cases with the author's conclusion that

Each side in the pop-up advertising battle should focus on the most favorable forum in which to make its case and the most relevant claims and defenses to present. For website owners, forums in which pop-up advertising has been deemed unlawful or where the initial interest confusion doctrine is recognized are likely advantageous. The opposite is, of course, true for pop-up advertisers. Further, depending on whether the facts differ from previous pop-up cases, or whether the court is more liberal in extending copyright protection, website owners may also want to focus their attention on trademark infringement claims. Pop-up advertisers, on the other hand, will likely find comfort in authority categorically dismissing copyright claims. Finally, both sides must be prepared to address the use in commerce issue which has played prominently in all reasoned pop-up advertising cases.