European and American Case Translation: Analysis of the nature of competitor pop-up ads
Utah Supreme Court
OVERSTOCK.COM,INC.,Delaware Corporation, original plaintiff, appellant, cross appellant
SMARTBARGAINS,INC.,Delaware Corporation, original defendant, appellant, cross appellant.
First, the judgment opinion
Chief Justice of the Supreme CourtDurhamThink:
The pop-up ads did not constitute unfair competition, and the plaintiffs failed to prove that the pop-up ads were fraudulent, infringing trademarks, impersonating competitors' goods as goods in the online marketable, or causing confusion;
Pop-up ads don't show improper purpose or means, so the online marketer doesn't meet themLeighThe second component of the test, the second component (illegal purpose, illegal means) that intentionally interferes with the potential economic relationship;
The court of first instance, in its discretion, rejected the additional evidence discovery motion filed by the online market.
The original judgment was upheld.
Second, the introduction
The court of first instance in this case was the Third District Court, and the parties appealed the court's decision to the Court. Plaintiff.Overstock.com,Inc.,(hereinafter referred to as "Overstock() Appeal against the following decision (1The District Court granted the defendant's approvalSmartBargains,Inc.(hereinafter referred to as "SmartBargains( ) motion for summary judgment, " said theSmartBargainsThe use of Internet pop-up ads ("pop-up ads") does not constitute unfair competition or infringement interferenceOverstockpotential economic relationships, and (2The district court ruledOverstockAccording to No56Article (fAdditional evidence discovery motion. Because we think that (1There are no important disputed facts in this case that need to be tried on substantive issues, and (2The district court is rejecting itOverstockAccording to No56Article (fIn moving the motion, there was no abuse of discretion, so we upheld the original judgment.
Footnote to the original judgment1: Pop-up ads are "online ads that appear in new browsing windows."”
Third, the background
Overstockis on its own websitehttp://www. overstock. comcompanies that sell brand-name consumer goods.SmartBargainsIt is also a company that sells consumer goods on its own website, which ishttp:// www.smartbargains. Com。2004Years.5Month.7DayOverstockForSmartBargainsMake a complaint.OverstockThe allegations allege that when the customer visitedOverstockwhen the site pops up adsSmartBargainsIllegal appearance. The purpose of these pop-up ads is to confuse and deceive customers and exploit themOverstockgoodwill, vilificationOverstocktrademark, weakenedOverstockThe trademark will beOverstockThe ability to label as a source of goods and services, erosionOverstockWebsite shopping attraction, destructionOverstockEfforts to create user-friendly websites, as well as fromOverstockSteal customers, and these pop-up ads do.OverstockThree causes of complaint were filed: (1Violations2004Utah SpyWare Regulation Act, (2Unfair competition in common law, and (3Infringement interferes with potential economic benefits.
I. Summary sentencing motion
2004Years.8Month.17DaySmartBargainsA motion was filed in the complaint, which was filed2005Years.1Month.27day was rejected.2005Years.2Month.25DaySmartBargainsA motion was filed to reconsider the court's rejection, which was filed2006Years.2Month.15day was rejected.2006Years.3Month.31DaySmartBargainsA motion for summary judgement was filed. The motion is made at2006Years.12Month.5Day was passed.
In its decision on the summary motion, the District Court held that2004Utah Spyware Regulation Act of the Year (Utah)2004legislation, which was codified into the Utah Code No13-40-101To.401Part of (Supp.2004Violation of the Invisible Commerce Clause is an unconstitutional burden on cross-state commerce. Under the Utah Spyware Regulation Act,SmartBargainIn customer visitsOverstockIt is illegal to pop up ads on a website. The Utah SpyWare Act states:
(a) Installing spyware on someone's computer;
(b) cause spyware to be installed on someone else's computer;
(c) Use trigger-based text to display ads that partially or completely cover or block paid ads, or other content on Internet sites, in a way that interferes with users' ability to view Internet sites.
In the Act, spyware is defined as including "software that exists on a computer ... When the computer is used, in response, the software displays the advertisement or causes the advertisement to be displayed... The condition is that the ad uses a federally registered trademark as a trigger for displaying the ad”。OverstockNo appeal was filed against the District Court's decision that the law was unconstitutional.
The District Court also found that pop-up ads did not constitute unfair competition under common law. The Court held thatSmartBargainsThe pop-up ads are in the sameOverstockThe site appears separately and with different windowsSmartBargainsname, and was not marked withOverstockabout the website. The Court held that "as other courts have recognized, computer users will not be confused by pop-up ads that appear in separate and different windows from the website below." Therefore, as a matter of law, advertising does not defraud customers about their origin. "The Court further held that"OverstockNo evidence was providedSmartBargainsUsedOverstocktrademarks to lure customers away. SoSmartBargainsThe pop-up ad does not cause it to be associated withOverstockInitial interest in a website, product, or service is confused. "
The court concluded that the pop-up ads did not interfere with infringementOverstockExisting or potential economic relationships, as pop-up ads are not fraudulent, confusing, or misleading, and are not intended to defraud customers. On the contrary, the Court heldOverstockAnd.SmartBargainsIt's a competitor, and pop-up ads are designed to compete for customers.
OverstockAppeals were filed against the summary decision, which involved claims of unfair competition remedies and claims of infringement interference with existing or potential economic relations relief.
OverstockAgainst.SmartBargainsmotion for summary judgment, and under No56Article (fThe rules put forward a motion and a memorandum in support of the motion. The motion and memorandum advocate, howeverSmartBargainsRight.OverstockThe evidence discovery request was responded to, howeverSmartBarginsDesignate that most of the information it provides is only "accessible to lawyers" and is prohibitedOverstockdisclosure to his client. In addition,OverstockThe summary judgement was considered premature, as written testimony and documentary evidence had not yet been produced and no witness statements had been received. In the motion document,OverstockIt did not specify what evidence it needed to find against the summary motion. In.SmartBargainsPointed out.OverstockAfter the deficiencies in the motion document,OverstockThe required findings of evidence were identified in the memorandum of defence and the accompanying testimony. In testimony and defense memos,OverstockThink it needs to know:SmartBargainWhen, if any, pop-up ads are sentOverstockComputer users on the site; various types and examples of pop-up ads; the total number of pop-up ads placed by third parties; pop-up ads and compensation paid to pop-up ad vendors; the number of pop-up ads placed; the number of Internet users accessing pop-up ads; and sales related to pop-up ads;SmartBargainsWhether you intend to target your adOverstockwebsite, and whether toOverstocktarget, the content of such ads, and the length of such ads (extent）；SmartBarginsRight.OverstockThe evidence discovery requests a response, an explanation of that part of the response, the specific type of pop-up ad used, and the website targeted.
The District Court heard against No56Article (foral arguments on the motion. In oral arguments,OverstockThe attorney admitted thatOverstockNo additional evidence was requested to be found and no motion was filed to compel itSmartBargainsDisclosure of evidence found becauseOverstockIt was awaiting a district court's finding that utah's Spyware Regulation Act was constitutional.Overstock"So, as a matter of practice, I'm not pushing for evidence discovery, because if Utah law is constitutional, if Utah law is in effect in this case, then the evidence discovery process will be very different than if we were seeking common law claims," the attorney said. In oral arguments, the District Court rejected itOverstockAccording to No56Article (fa motion filed.
OverstockAppeal against the veto. We're based onUtah Code section78A–3–102(3)(j) (2008).have jurisdiction.
I. Summary judgment
We reviewed the correctness of the District Court's decision to grant a summary decision motion."When a complaint, written testimony, answers to a question, a self-confessed file and, if any, testimony, indicate that there is no real dispute in the case as to the important facts, and that the moving party is entitled to a judgment on a legal issue." The summary sentence is appropriate.Although we believe that the facts disclosed are in the best interests of the non-mover, any question of fact that the parties claim must be important in order to refute a summary judgment motion.
A. Unfair competition
Under Utah common law, unfair competition includes, but is not limited to, counterfeiting, counterfeiting, imitation, and causing or causing confusion or fraud.In.Rocky MountainIn this case, we have stated:
We understand that unfair competition misleads buyers by using devices or names to mimic VPC manufactured or sold by others for the purpose of counterfeiting or replacing other people's goods, by luring buyers to buy their own goods rather than being imitated.
We also claim that "the possibility of proving confusion or fraud is sufficient." "
In granting the summary judgment, the District Court found no evidence of customer confusion, counterfeiting or fraud, the nature of the pop-up ad, and the absence of unfair competition in the case. As far as the nature of the pop-up ad is concerned, in the summary judgment, the District Court found thatSmartBargainsThe pop-up ads appear withOverstockIn separate and different windows, attachedSmartBargainsname, was not marked withOverstockWebsite related. The District Court used an analysis of federal cases ("WhenUcase) made in favourSmartBargains"Computer users will not be confused by pop-up ads that appear in separate and different windows from the site below," the analysis said. Therefore, as a matter of law, pop-up ads do not defraud customers about their origin. "
Footnotes to the original text of the judgement2：OverstockIn fact, it proved to the District Court and the Court that not allSmartBargainspop-up ads contain disclaimers. However, the District Court did not use the disclaimer that the pop-up ads did not constitute unfair competition as a basis for its decision.
Footnotes to the original text of the judgement3：（A preliminary injunction against placing pop-up ads on the site was overturned by the District CourtThe ;( a preliminary injunction against the company's pop-up adsThe ;( made a summary judgment in favor of the pop-up ad provider）。
We don't take it ourselvesThe illegal rule is that all pop-up ads do not violate Utah's anti-unfair competition laws.WhenUThe cases are of limited value in our analysis because they illustrate federal laws, including the Langham Act, the Trademark Development Act, and the Copyright Designation Act. For example, inWells Fargov. WhenU.com, Inc.,In the case, the plaintiff sought a preliminary injunction, arguingWhenUpop-up ads violate federal trademark or copyright laws.In.U–Haul Int'l,Inc. v. WhenU.com, Inc.,In the case, the court found that the WhyU pop-up ads did not infringe U-Haul's registered trademarks or U-Haul's copyright-protected ads, and therefore did not violate the Langham Act or the Trademark Infringement Act.1–800Contacts, Inc. v. WhenU.com, Inc.The question is "Does placing a pop-up ad constitute 'use' in the Langham Act while (visiting) the 1-800 website or the computer user enters the 1-800 website URL and obtains the results of the search".None of the Whyn U cases dealt with claims under unfair competition common law.
We agree with the District Court that, in this case, Overstock failed to prove that the pop-up ads placed by SmartBargains, marked with the SmartBargains logo and appeared in a window separate from them on the Overstock website, were fraudulent, infringing trademark rights, impersonating SmartBargains merchandise as Overstock merchandise, or could cause confusion. It is the responsibility of the party challenging the summary motion to cite important facts to challenge the motion.
When a motion for summary judgment is made and supported in accordance with these Rules, the opposite party may not respond only on the basis of a claim or a denial in the complaint, and the response of the opposite party (by way of testimony or other means provided for in these Rules) must be specifiedfacts to prove that there is a real dispute in the case that needs to be heard.
In its affidavit against the summary judgment, Overstock failed to provide evidence of any significant facts, not just on the basis of uns substantiated opinions and conclusions. Overstock has the ability to conduct its own investigations into the types of pop-up ads that affect Overstock's website and the customers lost as a result of SmartBargains pop-up ads. Overstock could have conducted an investigation into the customer's visit and presented evidence to the District Court that the customer had been confused by SmartBargains' pop-up ads. The parties in the WhenU case conducted such investigations.In the absence of such evidence, the court has the power to presume that pop-up ads that appear in separate windows and are marked with the name of a sponsor do not constitute unfair competition.
OverstockIn addition to the declaration of complaint, did not cite "specific facts" to prove "whether there is a real dispute that requires a trial", namely whether SmartBargains unfairly competed with Overstock through its pop-up ads.We therefore uphold the District Court's decision in favor of SmartBargains' summary decision on unfair competition.
B.Infringement interferes with potential economic relations
In.LeighFurniture & Carpet Co. v. Isom,In this case, the Court has recognized that "intentional interference with a potential economic relationship may be used as a common law cause of appeal"."In order to obtain damages, the plaintiff must prove (1) that the defendant intentionally interfered with the plaintiff's existing or potential economic relationship, (2) for improper purposes, or by improper means, (3) caused damage to the plaintiff."
Improper means are means used to interfere with a party's economic relations in violation of the law, such as the enactment of laws, regulations, or common law rules recognized by the courts. Unfair competition includes violence, threats or other intimidation, deception, misrepresentation, bribery, baseless litigation, defamation, or derogatory lies. in violation of established commercial or professional standards,It may also constitute inappropriate or illegal.
As.St.Benedict's,As in the case, Overstock failed to cite important facts to satisfy the second component of the Leigh test.SmartBargains' pop-up ads do not show improper purpose or means. Indisputably, SmartBargains' pop-up ads exist to compete with Overstock.Overstock has also failed to prove that pop-up ads are unfair competition.Overstock failed to prove that pop-up ads violated common law. And Overstock did not appeal that the pop-up ads violated the law. We therefore uphold the District Court's decision to agree to a summary judgment on infringement interference.
OverstockFailure to identify any important facts, i.e. the fact that unfair competition or infringement interferes with a potential economic relationship. Overstock also failed to identify any evidence it could receive from SmartBargains, even if it could indicate evidence of important facts in dispute. We therefore uphold the original judgment.
(This judgment is tedd in intellectual property at East China University of Political Science and Law.)2013Level graduate student Chen Yaqiu translation)
Originally published as Oriental Intellectual Property Electronic Magazine No. 47 (September 2015)
 Riddlev. Celebrity Cruises, Inc., 2004 UT App 487, ¶ 2.1, 105 P.3d 970 (Internal draw omission)
 Utah CodeAnn. § 13–40–201(4)(Supp.2004).
 UtahCode Ann. § 13–40–102(4)
 See Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 21, 54 P.3d 1054.
 Utah R. Civ.P. 56(c).
See Norton v. Blackham, 669 P.2d 857, 859 (Utah1983); see also Brigham Truck & Implement Co. v. Fridal, 746 P.2d 1171,1173 (Utah 1987)(Pure argument, i.e. arguments that do not have detailed factual statements to support them, are not sufficient to constitute an important factual issue);ReaganOutdoor Adver., Inc. v. Lundgren, 692 P.2d 776, 779 (Utah 1984) ("The main purpose of summary judgments is to avoid unnecessary trials by allowing the parties to delve deeper into the complaint to determine whether there are real problems that need to be presented to the fact-finder." To achieve this, the parties must prove specific facts as to whether there is a real problem requiring a trial. The claims in the complaint or the factual conclusions in the affidavit are not sufficient to constitute a real factual problem. "(Subcontracting omitted))
 See Allen's Prods. Co. v. Glover, 18 Utah 2d9, 414 P.2d 93 (1966); Budget Sys., Inc. v. Budget Loan and Fin. Plan, 12 Utah 2d18, 361 P.2d 512 (1961); *863Hi–Land Dairyman's Ass'n. v.Cloverleaf Dairy, 107 Utah 68,151 P.2d 710 (1944); Beard v. Bd. of Educ., 81 Utah 51,16 P.2d 900 (1932); Rocky Mountain Bell Tel. Co. v. Utah Indep. Tel. Co., 31 Utah 377,88 P. 26 (1906).
 88 P. at 28;see also Beard, 16 P.2d at902 ("Unfair competition is directed against the public (upon thepublicA product or business that counterfeits or attempts to impersonate one person's goods or businesses (note omitted).
 Hi–Land Dairyman's Ass'n., 151 P.2d at717.
 See,e.g., 1–800Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir.2005)
 WellsFargo v. WhenU.com, Inc., 293 F.Supp.2d 734 (E.D.Mich.2003)
 U–Haul Int'l, Inc. v.WhenU.com, Inc., 279 F.Supp.2d 723 (E.D.Va.2003)
 293 F.Supp.2d734, 736 (E.D.Mich.2003).
 279 F.Supp.2d723, 725, 727 (E.D.Va.2003) ("Because the disputed computer software was not copied or usedU-Haultrademarks or copyrighted material, the court ultimately heldWhenUpop-up ads do not constitute trademark or copyright infringement or unfair competition, therefore, the court agreesWhenUmotion for summary judgment. ")。
 414 F.3d 400,409–10 (2d Cir.2005).
 See Norton, 669 P.2d at859.
 Utah R. Civ.P. 56(e). "An affidavit that merely reflects the unverited opinions and conclusions of the affidavit is not sufficient to create a true factual dispute."Dairy Prod. Servs., Inc. v. City of Wellsville, 2000 UT 81, ¶ 54, 13 P.3d 581. "An affidavit based on information and belief is not enough to cause a real factual dispute."Treloggan v. Treloggan, 699 P.2d747, 748 (Utah 1985).
 See Wells Fargo, 293F.Supp.2d at 755("The plaintiff failed to provide definitive evidence, even if there was a customer or potential customer becauseWhenUand failed to purchase products or services from the plaintiff. ");1–800 Contacts, Inc. v.WhenU.com, 309F.Supp.2d 467, 499 (S.D.N.Y.2003) ("Actual evidence of confusion in the form of a market research survey is highly evidence of the likelihood of customer confusion, provided that the investigation is impartial and that its results point to the relevant dispute" (internal quotation marks and omits))rev'd, 414 F.3d 400(2d Cir.2005).
 See Reagan Outdoor Adver., 692 P.2d at779.
 657 P.2d 293,304 (Utah 1982).
 St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d194, 201 (Utah 1991).
Same as above (internal quotation marks and omits).
 See St. Benedict's, 811 P.2d at201 (citing Leigh Furniture, 657 P.2d at304).
 See Leigh Furniture, 657 P.2d at307 ("In a competitive market, competitors inevitably harm another person in the market when they are fighting for their own interests. The law does not provide relief for such damage, even intentionally, because it is an inevitable by-product of competition. "); see also St. Benedict's, 811 P.2d at201 ("The direct intention to harm competitors may be stimulated and offset by the promotion of the legitimate long-term interest of the individual's own economic conditions (motivatedand outweighed）”); Beard v. Bd. of Educ., 16 P.2d at902 ("The intention to solicit customers from competitors is irreseclatable unless their actions are illegal.")。
 See St. Benedict's, 811 P.2d at201 ("Improper means mean that ... Violating the law... Means (internal quotation marks omitted))。
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