1-800 CONTACTS, INC., Plaintiff-Appellee,
v.
WHENU.COM, INC. and VISION DIRECT, INC., Defendants-Appellants.
United States Court of Appeals, Second Circuit.https://leagle.com/images/logo.png
Argued April 5, 2004.
Decided June 27, 2005.
Attorney(s) appearing for the Case
Terence P. Ross, Gibson, Dunn & Crutcher, L.L.P. (Rachel A. Clark, Prasanth R. Akkapeddi, and Amy E. Barrier, on the brief), Washington, DC, for Plaintiff-Appellee 1-800 Contacts, Inc.
Celia Goldwag Barenholtz, Kronish, Lieb, Weiner & Hellman (Michael D. Paley, Jason M. Koral, and Ian Ross Shapiro, on the brief), New York, NY, for Defendant-Appellant WhenU.Com, Inc.
Jeffrey E. Ostrow, Simpson Thacher & Bartlett LLP (Patrick E. King and Theodore J. McEvoy, on the brief), New York, NY, for Defendant-Appellant Vision Direct, Inc.
Mark A. Lemley, Keker & Van Nest, LLP, San Francisco, CA, for amicus curiae Google Inc. urging reversal of the district court.
Thomas C. Morrison, Christine H. Miller, Eden Doniger, Patterson, Belknap, Webb & Tyler LLP (Peter J. Brann, Kevin Beal, Brann & Isaacson, LLP; Daniel G. Clodfelter, Thomas E. Graham, Moore & Van Allen, PLLC; Richard R. Hays, David J. Stewart, Alston & Bird, LLP; Jennifer G. Altman, Boies, Schiller & Flexner, LLP, of counsel), New York, NY, for amici curiae The Hertz Corporation, L.L. Bean, Inc., Lending Tree, Inc., Six Continents Hotels, Inc., Inter-Continental Hotels Corporation, and TigerDirect, Inc. in support of Plaintiff-Appellee 1-800 Contacts, Inc.
Professor Eric Goldman, Marquette University Law School, Milwaukee, WI; Cindy Cohn, Fred von Lohmann, Electronic Frontier Foundation, San Francisco, CA, for amicus curiae Electronic Frontier Foundation urging reversal of the district court.
Before: WALKER, Chief Judge, and STRAUB, Circuit Judge.
United States Court of Appeals, Second Circuit.
JOHN M. WALKER, JR., Chief Judge.
Defendant-appellant WhenU.com, Inc. ("WhenU") 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. Plaintiff-appellee 1-800 Contacts, Inc. ("1-800") is a distributor that sells contact lenses and related products by mail, telephone...
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