Law for Business 12th Edition by James Barnes,Terry Dworkin,Eric Richards

Exercise 6

WhenU.com (WhenU) distributes a downloadable software program, called SaveNow, that is generally bundled for distribution with other software programs. For example, the pop-up advertisement software is found in many Web-based "free" screensaver programs downloaded by individual computer users. Once a user accepts the license agreement, the SaveNow software is delivered and installed on the user's computer. Using "keying," the SaveNow program determines whether the user's computer should receive a pop-up advertisement which is selected at random from WhenU clients that match the category of the user's activity. The program will then display a pop-up advertisement on the user's computer screen; this pop-up ad will generally appear in front of all the windows the user may have open at the time. Once the popup ad is displayed, the user must either move the mouse and click the ad closed or use the keystrokes "Alt-F4" to close the ad. To maintain its business, WhenU sells advertising space and opportunities to merchants that want to take advantage of the SaveNow software. U-Haul complained that WhenU's pop-up advertisements, which crowd the computer user's screen and block out U-Haul's website display, in effect, infringe on U-Haul's registered trademark because the pop-ups often display ads from U-Haul's competitors. Should U-Haul recover for trademark infringement? Explain.