SW Legal studies in Business

Pop-Up Ads on Competitorís Website Not Illegal
Description

Utah high court held that when a competitor had pop-up ads come up when a person accessed the website of another competitor there was no unfair competition or the tort of interference with prospective advantage. The ads were legitimate and not deceptive in content.

Topic Torts
Key Words

Interference with Prospective Advantage; Unfair Competition; Pop-up Ads

C A S E   S U M M A R Y
Facts

Overstock and SmartBargains (SB) both sell brand-name products through their .com websites. Overstock sued SB, complaining that pop-up ads for SB illegally appeared when customers accessed Overstock’s website. Overstock contended the ads were unfair competition and tortious interference with prospective economic advantage. The trial court granted summary judgment for SB. Overstock appealed.

Decision

Affirmed. The pop-up ads were not unfair competition absent a showing that the ads were deceptive, infringed a trademark, passed of competitor’s goods as those of another store, or were likely to cause confusion. The pop-ups were clearly identified as SmartBargain’s and did not contain false information. To recover for intentional interference with prospective advantage, a plaintiff must show 1) that the defendant intentionally interfered with the plaintiff’s existing or potential economic relations, 2) for an improper purpose or by improper means, 3) causing injury to the plaintiff. The purpose of the ads was not improper as they stimulated competition. There was no deceit involved.

Citation

Overstock.com v. SmartBargains, ---P.3d--- (2008 WL 3835094, Sup. Ct., UT, 2008)

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