|Sending Pop-Up Ads to Competitor Website Enjoined|
|Description||Trial court issued an injunction against a retailer and its software company from sending pop-up ads for the retailer to appear on the website of a competitor retailer when the website was visited by a customer. The website operator showed there was likely to be a violation of its trademark and of the Anticybersquatting Consumer Protection Act.|
|Key Words||Trademark; Infringement; Unfair Competition; Pop-Ups|
|C A S E S U M M A R Y|
|Facts||The owner of a website and the mark 1-800 Contacts (www.1800contacts.com) sued competitor Vision Direct and its software company, WhenU.com, to enjoin them from delivering to computer users competitive pop-up ads. Unknown to Contacts, visitors to its website would have downloaded on their computers WhenU pop-up software for Vision Direct ads.|
Preliminary injunction against WhenU and Vision
Direct granted. Contacts has established a likelihood of success on its
trademark infringement claim and a likelihood of success on its claim
under the Anticybersquatting Consumer Protection Act (ACPA). The defendants
used the Contacts trademark in commerce. The pop-up ads could confuse
consumers into thinking that the competitor, Vision Direct, was somehow
associated with Contacts. This knowing use of the Contacts mark supports
a finding of bad faith under the ACPA and Lanham Act.
|Citation||1-800 Contacts, Inc. v. WhenU.com, 2003 WL 22999270 (S.D., NY, 2003)|
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