LowerMyBills.com has obtained a judgment against NexTag for banner ad copyright infringement – according to the press release, “NexTag must pay LowerMyBills.com $200,000 in accordance with the judgment.” LowerMyBills.com also states that
The judgment against NexTag is among the first LowerMyBills.com is aware of obtained in a lawsuit involving claims of copyright infringement of online advertising, paving the way for other online advertisers to protect their intellectual property.
I’d really like to see the full details of this one. If the judgment’s too broad, it could have implications for many more companies, both in the lead generation space and across the Internet as a whole. Shall we all start suing each other over who was the first to use a dropdown ‘select-your-state’ menu or a four-step mortgage form? If the judgment’s a narrow one, however, we need to know just how narrow. Is only the accordian anteater off limits? All sausage animals? Anything with fifty objects labeled with two-character state abbreviations? If the judgment’s limited to one particular NexTag ad that looked a little too similar to one of LowerMyBills’, fine – but if it covers general banner layouts and components, the whole industry could go lawsuit-happy. Imagine, in a time of declining refinance demand, mortgage lead companies trying to secure their supply by claiming exclusive rights to entire genres of advertisments. It wouldn’t be pretty.
The most eyebrow-raising part of LowerMyBills.com’s press release was this: “The company has earned brand recognition from consumers for its whimsical personality online and eye-catching banner ads.” Maybe, but I always assumed LowerMyBills (and most lead generation companies) compensate for lack of brand recognition through standard interruption marketing – the louder and flashier the banner, the more it’ll draw your eye and increase your chance of clicking on it. I’d always assumed the principle was no different from ‘Wacky Larry’s Used Car Extravaganza’ commercials on the late-night local news. If there’s evidence out there to prove me wrong, I’d like very much to see it.
(Disclaimer: Yes, I used to work for NexTag, but wasn’t producing advertising – I don’t know any more about this case’s details, scope, or merits than you do. And nothing written here should be interpreted as criticism of either company.)
