South-Western Legal Studies in Business

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.
Topic Cyberlaw
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.
Decision

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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