Pop goes the Lawsuit

LL Bean sued 4 companies in Portland, Maine today claiming that the companies deployment of pop-up ads using "LL Bean" as a trigger infringed its trademark by causing customer confusion.  (Actually, when I visited the Bean site I did not experience this annoyance).  
Bean is the defendant in a similar suit by Gator in California for declaratory judgment that its pop ups are perfectly kosher.   The 9th Circuit en banc will decide if there is jurisdiction over LL Bean based on its catalog and online business in California.   This is one of many cases where confusion over how the Internet and its applications work is passed off as actionable confusion as to the origin or sponsorship of goods.  Does anyone think, when she tries to find LL Bean and gets a pop-up ad for Nordstrom, that LL Bean is affiliated with Nordstrom and blames Bean for the annoying pop-ups?  Unfortunately, yes.   I may have even made a similar mistake myself, concluding a site was impossible to use because of pop-ups without really bothering to find out who was responsible for the nightmare.  But this is technical confusion, not Lanham Act confusion.   Rendering someone else's website unusable should be actionable!  But trademark infringement is not the right cause of action to assert here.