Users who have installed WhenU's software are presented with pop-up advertising windows offering similar services to those offered by the websites that they are browsing.

The case against the adware vendor was brought by contact lens retailer, 1-800 Contacts Inc, following the discovery that internet users with the software installed who visited its website were shown pop-ups advertising rival contact lens retailer, Vision Direct.

Judge Batts observed that:

"The fact that Defendants' pop-up advertisement for competing internet contact lens retailers appears shortly after a consumer types into the browser bar Plaintiff's trademarked name and accesses Plaintiff's homepage increases the likelihood that a consumer might assume Defendants' pop-up advertisements are endorsed or licensed by Plaintiff."

A key factor influencing the verdict was a survey undertaken by 1-800 Contacts, which revealed that 68% of users of WhenU's Save Now software did not realise that they had it installed on their machines, and that 76% who did know that they had the software were unaware of its function.