EFF: Trademark Owners Can't Control Your Desktop

[David Farber <dave () farber net>]

Begin forwarded message:

From: EFF Press <press () eff org>
Date: June 29, 2005 2:13:02 PM EDT
To: presslist () eff org
Subject: [E-B] EFF: Trademark Owners Can't Control Your Desktop
Reply-To: press () eff org


Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, June 29, 2005

Contact:

Wendy Seltzer
  Staff Attorney
  Electronic Frontier Foundation
  wendy () eff org
  +1 415 436-9333 x125 (office), +1 914 374-0613 (cell)

Fred von Lohmann
  Senior Intellectual Property Attorney
  Electronic Frontier Foundation
  fred () eff org
  +1 415 436-9333 x123 (office), +1 415 215-6087 (cell)

Trademark Owners Can't Control Your Desktop

Decision in Internet Ads Case Protects Consumers

New York - The Second Circuit Court of Appeals issued a
decision this week that promises to prevent trademark
owners from asserting control over the computers of
consumers who visit the trademark owners' websites. The
case, 1-800 Contacts v. WhenU, questioned whether it was a
trademark violation for Internet "adware" company WhenU to
provide users with software that gives them advertisements
related to keywords found in their online searches. The
Second Circuit found that the use of a trademark in
software used to generate ads is not a "use in commerce"
under trademark law.

The Electronic Frontier Foundation (EFF) filed an amicus
brief in the case with the assistance of Professor Eric
Goldman of Marquette University Law School. In it, EFF
argued that consumers should not be prohibited by trademark
law from installing software that allows them, when typing
"1-800-Contacts" into a search engine, to see information
(including advertisements) from the company's competitors
as well as from the company.

"A trademark owner is not entitled to control your desktop
just because you happen to be visiting its website," said
Fred von Lohmann, EFF senior staff attorney. "This decision
is good news for consumers who want the freedom to install
tools that help them customize their web-surfing."

Online contact lens distributor 1-800 Contacts, Inc., won
an initial preliminary injunction against WhenU.com, Inc.,
in October 2002, claiming that WhenU.com's SaveNow software
confused potential customers by generating ads related to
the words and web addresses users entered into online
search engines and web browsers. WhenU.com appealed the
lower court's ruling in December 2003, and the Second
Circuit overturned the lower court's ruling.


Decision:
http://www.eff.org/legal/cases/1800contacts_v_whenu/decision.pdf

EFF's amicus brief:
http://www.eff.org/IP/TM/20040218_WhenU_Amicus.pdf

For this release:
http://www.eff.org/news/archives/2005_06.php#003765

About EFF

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at http://www.eff.org/


    -end-

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