Defendant's "pop up" advertisements, which appear on computer screens contemporaneously with the appearance of plaintiff's website, do not infringe upon plaintiff's trademark.
Defendant is an internet marketing company that uses a proprietary software called “SaveNow” to monitor a computer user’s internet activity in order to provide the computer user (“C-user”) with advertising, in the form of “pop-up ads,” that is relevant to that activity.
1-800 Contacts, Inc. v. Whenu.com, Inc. (06/27/05 - No. 04-0026, 04-0446). [Thanks Cathy]