1-800 Contacts, Inc. v. WhenU.com, Inc.
United States Court of Appeals for the Second Circuit
414 F.3d 400 (2005)
WhenU.com, Inc. (WhenU) (defendant) was an internet marketing company that used software to display advertisements to computer users that were relevant to the user’s computer activities. WhenU’s software used a directory of websites and key terms that, when typed into a web browser or search engine, displayed a pop-up ad to the user in the same product or service category in a different web window. 1-800 Contacts, Inc. (1-800) (plaintiff) sued WhenU for trademark infringement alleging that WhenU’s software showed ads of 1-800’s competitors when users visited 1-800’s website. WhenU denied using 1-800’s trademark within the meaning of the Lanham Act. The district court granted 1-800’s motion for a preliminary injunction and held that WhenU used 1-800’s trademark in two ways: by including 1-800’s website address (that incorporates 1-800’s trademark) in WhenU’s directory and by initiating advertising when users visited 1-800’s website, which contains trademarks. WhenU appealed.
Rule of Law
Holding and Reasoning (Walker, C.J.)
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