mark’s similarity to the plaintiff’s web address. Rather, the display of the ads was the result of
the happenstance that the plaintiff chose to use a mark similar to its trademark as the address to
its web page. Nor did WhenU’s activities divert or misdirect computer users away from the
plaintiff’s website. Finally, the court noted that WhenU did not sell keyword trademarks to its
customers or otherwise manipulate which category-related ad would pop up in response to any
particular terms on the internal directory. Accordingly, the ads did not represent a “use” in
commerce of the plaintiff’s trademarks.^3370
- The MetroGuide Litigation
In January 2003, MetroGuide.com sued Hotels.com in Florida for violations of copyright
and unfair competition laws for its practice of causing pop-up ads for Hotels.com to appear over
MetroGuide’s web sites. The complaint alleges that the pop-up ads obscured the
plaintiff439brand and content underneath them, enticing customers to book rooms directly with
Hotels.com.^3371
- The D Squared Litigation
In Oct. 2003, the Federal Trade Commission instituted litigation against D Squared
Solutions in federal district court in Maryland.^3372 D Squared co-opted a network administration
feature of Microsoft Windows known as “Messenger Service,” which was designed to enable
computer network administrators to provide instant information to network users such as the
need to log off, to send a stream of repeated pop-up advertisements that appeared on the screens
of computer users connected to the Internet at 10- to 30-minute intervals. The pop-up messages
instructed consumers to visit one of the defendants’ web sites to purchase software that would
cause the pop-up ads to stop.^3373 The FTC sued D Squared, alleging that its business methods
constituted unfair competition, and secured a temporary restraining order against the
defendants.^3374
On Dec. 16, 2003, the court, after a hearing on an order to show cause why the court
should not enter a preliminary injunction, denied the FTC’s request for a preliminary injunction,
vacated the temporary restraining order, and directed counsel to commence discovery
immediately. A non-jury trial was calendared for Mar. 8-10, 2004. Because the court rendered
its ruling on the record, no opinion was issued giving the court’s reasons. However, the court
(^3370) Id. at 410-12.
(^3371) “MetroGuide.com Sues Hotels.com; Seeks Damages for Copyright Infringement and Predatory Advertising”
(Jan. 27, 2003), available as of Jan. 28, 2003 at http://www.businesswire.com/cgi-
bin/f_headline.cgi?bw.012703/230272653.
(^3372) Complaint, Federal Trade Commission v. D Squared Solutions, LLC, 03 CV 31 08 (D. Md. Oct. 30, 2003),
available as of Jan. 17, 2004 at http://www.ftc.gov/os/2003/11/0323223comp.pdf.
(^3373) Id. ¶¶ 9-10.
(^3374) The temporary restraining order was available as of Jan. 17, 2004 at http://www.ftc.gov/os/2003/11/0323223tro.pdf.