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1-800 Contacts, Inc. v. WhenU.com, Inc.

United States Court of Appeals for the Second Circuit
414 F.3d 400 (2005)

Written by Whitney Kamerzel , JD

Facts

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

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Issue

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Holding and Reasoning (Walker, C.J.)

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