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Trademark Law Shapes Internet Pop-up Ads

By Jonathan Bick
June 28, 2005

Despite their negative public images, Internet pop-up ads and unsolicited commercial e-mail (spam) have transfigured marketing. Like spam, Internet pop-ups can be lawful if they are not deceptive.

Trademark infringement may be the only cause of action that succeeds in getting Internet pop-up advertisers to change their business methods. While the court in 1-800 Contacts, Inc. v. WhenU.com, Inc., 309 F.Supp.2d 467 (S.D.N.Y. 2003), granted a preliminary injunction for trademark infringement, the courts in both Wells Fargo & Co. v. WhenU.com, Inc., 293 F.Supp.2d 734 (E.D. Mich. 2003) and U-Haul Int'l, Inc. v. WhenU.com, Inc., 279 F.Supp.2d 723 (E.D. Va. 2003), declined to apply trademark law. Thus, the application of existing trademark law to Internet pop-ups is in the midst of shaping Internet pop-up advertisement.

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