Bonzi Software, one of the most prolific banner advertisers on the Internet, has been hit with a lawsuit alleging the company has engaged in a "diabolical scheme" of deceptive advertising.
The class action suit was filed in Washington State Superior Court on behalf of "all persons residing in the United States who have, while operating a computer, encountered an advertising banner" placed by Bonzi. Philip Carstens, a Spokane, Wash. resident and Internet user, is named as the plaintiff and representative of the class. The firm working with the plaintiff, Lukins & Annis, said it has filed a motion to have the class certified by the court early next year.
The suit alleges Bonzi's advertising banners -- which mimic dialog boxes that feature "message alert," security alert," or "warning" -- trick Internet users into clicking through to Bonzi's site, where it sells software. Philip. The suit asks for Bonzi to pay $500 for each Internet user who has encountered one of the ads and $5 per impression served. Besides naming Bonzi as a defendant, it also names Bonzi's chief executive officer and chief financial officer.
Lukins & Annis, the Spokane, Wash., law firm filing the suit, estimates Bonzi has served more than 300 million impressions of these banners.
"The Internet has unfortunately become a cornucopia for deceptive business practices," said Darrell Scott, the Lukins lawyer handling the complaint. "Deceptive practices that would quickly put a local corner businessman out of business have unfortunately become routine and profitable tools of the trade when business is conducted over the Internet."
A representative for San Luis Obispo, Calif.-based Bonzi Software said he was unaware of the lawsuit.
The suit alleges Bonzi's advertising methods are part of a "conspiratorial enterprise" that tricks Internet users into visiting its Web site, Bonzi.com, which functions as a portal and a promotional vehicle for its software products. Bonzi sells a number of software products, including a voice e-mail program and BonziBUDDY, a purple gorilla that accompanies users around the Net and suggests sites to visit.
The class action centers on the appearance and text of Bonzi's advertisements. According to Lukins, the ads are intentionally similar to system warnings issued by Windows, in shape, color and layout.
The result of these ad efforts, the suit alleges, is to rank Bonzi.com as the third highest-trafficked software site on the Internet. In October, the site garnered just over 2 million unique visitors, according to Nielsen//NetRatings.
Nielsen//NetRatings' AdRelevance unit ranked Bonzi as the top software advertiser in October, serving more than 743,000 impressions -- more than double that of the No. 2 software advertiser, Expertcity.
In addition to monetary damages, the suit asks for an injunction against Bonzi issuing banners ads that appear as system warnings.
The allegations of deceptive advertising practices follow on the many legal troubles faced by another software maker, Gator, which is under fire from publishers who claim that Gator deceives users into downloading its ad-serving OfferCompanion software. Gator has responded that its users know they are downloading ad-supported software.
"I think that the business practices of some businesses on the Internet are ripe for litigation," Scott said. "I think litigation will be one tool that will elevate the legitimacy and prestige of Internet advertising."
Brian Morrissey, Internet.com. December 4, 2002
Copyright © 2002 Jupitermedia Corporation. All rights reserved.