New York, NY - The Electronic Frontier Foundation (EFF) yesterday asked a federal appeals court to reverse a lower court decision involving the right to provide online advertisements during web browsing.

Online contact lens distributor 1-800 Contacts, Inc., won an initial trademark violation lawsuit against, Inc., in October 2002, claiming that's SaveNow software confused potential customers by generating ads related to the words and web addresses people enter into online search engines and web browsers. appealed the lower court's ruling in December 2003 explaining that its ads -- known as pop-ups, pop-unders, and other types -- are all generated in a manner that does not confuse web users.

"If I'm walking to my neighborhood drugstore to purchase contact lenses and on the way I see a pharmacy with lenses at half the price, I should be able to stop by and take a look at the competition before making my purchase," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The lower court failed to consider common sense in making its decision to prevent WhenU from placing ads near other company's websites, and we believe the appeals court will recognize that competitive non-deceptive advertising online is not a violation of trademark law."

EFF filed an amicus brief in the case with the assistance of Professor Eric Goldman of Marquette University Law School.

* For the EFF amicus brief and more information on 1-800 Contacts v WhenU and other trademark cases


Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation