Eric Goldman has a must-read summary of a recent trademark/internet keywords case (Important 2d Circuit Adware Case--1-800 Contacts v. WhenU).

The court found that WhenU was not liable for trademark infringement as a matter of law: "We hold that, as a matter of law, WhenU does not 'use' 1-800's trademarks within the meaning of the Lanham Act, 15 U.S.C. 1127, when it (1) includes 1-800's website address, which is almost identical to 1-800's trademark, in an unpublished directory of terms that trigger delivery of WhenU's contextually relevant advertising to C-users; or (2) causes separate, branded pop-up ads to appear on a C-user's computer screen either above, below, or along the bottom edge of the 1-800 website window."