May 19, 2004, 12:00 AM

L.L. Bean sues Nordstrom, JC Penney, others over pop-up ad practices

Bean’s complaint alleges that pop-up ads for the companies that appear on infringe on L.L. Bean’s trademark rights. The ads cited are enabled by technology from Claria Corp., formerly Gator Corp., says Bean.

Kurt Peters

Executive Editor

L.L. Bean is suing four online marketers including Nordstrom Inc. and JC Penney Co. Inc. over their alleged use of pop-up ads enabled by software developed by Claria Corp., formerly known as Gator. The suit, filed in Maine District Court this week, also names Atkins Nutritionals Inc. and Gevalia Coffee. Bean’s complaint alleges that pop-up ads for the companies that appear on infringe on L.L. Bean’s trademark rights.

Software such as Claria’s – software that’s also known as “spyware” – is often bundled in when web users voluntarily download an application they want, such as the ability to share files. Though it may be stated in the download agreement that the application is part of the package, that may not be clear to the user. The spyware “reads” the user’s activity on a web site, such as Bean’s for example, and it can trigger pop-up ads for competing products and companies depending on what it sees the user is searching or browsing for on the site.

Because users may not be aware they’ve downloaded the ad-triggering application into their browser themselves, if annoyed by the pop-up ads that appear while visiting a site such as Bean’s, they may mistakenly blame the site itself for serving up the ads.

“It’s bad enough that there are companies out there wantonly poaching consumer activity on our site and redirecting it to themselves. But even worse is the fact that our reputation is injured by a consumer perception that suggests L.L. Bean is authorizing these activities or is even receiving compensation for it,” says Mary Lou Kelley, L.L. Bean vice president of e-commerce.

The suit, Kelley adds, is intended to make it clear that Bean does not “employ, condone and will not tolerate these deceptive and invasive practices.” Nordstrom and JC Penney did not return calls seeking comment. Claria declined to comment.



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