28
Jun/05

2d Cir in WhenU: Sale and Placement Of Pop Up Ads Is Not Trademark Use


The Second Circuit has reversed the District Court in 1-800-Contacts and dismiised the trademark infringment cause (remanding to hear unfair competition cause).

Text of decision: (drill down on 2d Cir. site on ‘search all’ link).

I understand the Court’s holding that WhenU’s internal listing of website URLs is not trademark use.  I understand that in and of itself, placing an ad next to a competitor’s ad is not trademark use (but might be an element of unfair competition).  I think that in its dicta, the Court placed too much emphasis on the fact that WhenU sells categories (as in eye care) as opposed to keywords.  I think that when you read the discussion of free-riding on page 24, you can predict how these justices would come out on the unfair competition causes.  I think that it’s interesting that a company that advertises on Gator, would sue WhenU.

Prof. Goldman on decision here.

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