In 1994, Byron Darrah developed an email software program called “Coolmail” and distributed it for free over the internet, under a general public license that allowed users to copy, distribute, and modify the software. Darrah later released two additional versions of Coolmail, communicated with users about Coolmail, granted permission for a company to include Coolmail in a package of software it sold, and in 1999 transferred all rights to the Coolmail software to Planetary Motion, Inc. (Planetary) (plaintiff). In 1998, Techsplosion, Inc. (defendant) began offering an email service on the internet under the mark “CoolMail.” Planetary sued Techsplosion for infringement of the claimed mark “Coolmail” for use in connection with email services. The district court held for Planetary, ruling that the distribution of the software on the internet was sufficient to establish ownership rights in the mark, even without any sales. Techsplosion appealed, alleging that the usage was insufficient to create trademark rights.