Law for Business 10th Edition by James Barnes,Terry Dworkin,Eric Richards

Exercise 3

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 pop-up 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.