Cnet News:  “A federal appeals court overturned a ruling against adware maker WhenU that held it violated the trademarks of vision specialist 1-800-Contacts in the sale and distribution of pop-up advertising.  The ruling, delivered Monday by the 2nd U.S. Court of Appeals, reversed an earlier decision that confined WhenU from selling pop-ups triggered by 1-800-Contacts’ trademarks, in violation of the Lanham Act, the U.S. trademark act.”

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does not ‘use’ 1-800’s trademarks within the meaning of the Lanham Act when it includes 1-800’s Web site address in an unpublished directory of terms that trigger delivery of WhenU’s (ads) to computer users,” according to the ruling.