South-Western Legal Studies in Business

Competitor’s Pop-Ups Did Not Violate Trademark Law
Description Appeals court held that a pop-up ad that directed visitors to a website to visit the website of a competitor did not violate the trademark of the website owner because it made no use of any trademarks and did not affect the functionality of the website.
Topic Cyberlaw
Key Words Trademarks; Lanham Act; Internet; Pop-up Ads
C A S E   S U M M A R Y
Facts 1-800 Contacts sells contact lenses over the Internet. It sued WhenU.com for Lanham Act violations. Its software caused visitors to the 1-800 Contacts website to see pop-ups for a competitor, Vision Direct. I-800 Contacts contended that the pop-ups infringed on its trademarks. The district court held that the pop-ups were illegal as they directed customers to a competitor website. Defendants appealed.
Decision

Reversed and remanded. The competitors did not use 1-800 Contacts trademarks in creating their pop-up ads. The ads contained information about a competitor. Because there was no use of the trademarks there was no Lanham Act violation. The pop-ups did not affect the functionality of 1-800 Contacts’ website.

Citation 1-800 Contacts, Inc. v. WhenU.Com, Inc.,, 414 F.3d 400 (2nd Cir., 2005)

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