Adware-Maker WhenU has won a major victory in the 2nd U. S. Court of Appeals, which ruled that WhenU did not violate trademarks with its distribution of pop-up advertising. The complaining company, 1-800-CONTACTS contended that WhenU was violating their trademark by selling pop-up ads to competitors while visitors were on the 1-800-CONTACTS website.
According to an article in CNET, the ruling states “We hold that, as a matter of law, WhenU does not ‘use’ 1-800’s trademarks within the meaning of the Lanham Act when it includes 1-800’s Web site address in an unpublished directory of terms that trigger delivery of WhenU’s (ads) to computer users.”
WhenU makes free downloadable software that is distributed with popular free downloads such as free screensavers and peer-to-peer file sharing applications and is on an estimated 12 million PC’s. Both WhenU and the free download manufacturers split the profits from the advertising fees generated from the pop-up ads. WhenU’s spin on the win is that this victory is a “win for consumers”.
The real win for consumers though may be in downloading a free anti-adware / spyware application such as Spybot Search & Destroy in order to keep adware to a minimum.