Federal District Court Opinions

WELLS FARGO & CO. v. WHENU.COM, INC., (E.D.Mich. 2003)
Wells Fargo & Co., et. al., Plaintiffs, v. WhenU.com, Inc.,
Defendant Case No. 03-71906 United States District Court,
E.D. Michigan. November 19, 2003


NANCY EDMUNDS, District Judge


Almost everyone who has surfed the Internet on his or her
computer has encountered advertisements that pop-up from
time to time. While the average Internet user may find the
advertisements annoying, the question before the Court is
whether they violate trademark or copyright law. Plaintiffs
Wells Fargo & Co. and Quicken Loans, Inc. have asked the
Court for a preliminary injunction against Defendant
WhenU.com, Inc., whose business is Internet contextual
advertising. For the reasons stated in this opinion,
plaintiffs’ motion for preliminary injunction is DENIED.


The Parties

1. Plaintiff WFC Holdings Corporation is a corporation
incorporated in Delaware with its principal place of
business in San Francisco, California. Complaint ¶

2. Plaintiff Wells Fargo & Company (collectively with WFC
Holdings Corporation, “Wells Fargo”) is a corporation
incorporated in Delaware with its principal place of
business Page 2 in San Francisco, California, and is the
parent company of WFC Holdings Corporation. Complaint
¶ 7.

3. Plaintiff Quicken Loans Inc. (“Quicken Loans”) is a
corporation incorporated in Michigan with its principal
place of business in Livonia, Michigan. Complaint ¶

4. Plaintiffs Wells Fargo and Quicken Loans operate
websites through which certain financial services are
offered. Complaint ¶¶ 8, 10.

5. Defendant WhenU.com, Inc. (“WhenU”) is a corporation
incorporated in Delaware with its principal place of
business in New York, New York. Answer ¶ 11.

Plaintiffs’ Trademarks and Copyrights

6. The term “Wells Fargo” is a registered trademark of
plaintiff Wells Fargo. PX 115. Wells Fargo has also
received trademark registration for the logo it uses on its
website. PX 117.

7. “QUICKEN LOANS” is a federally registered trademark,
U.S. Reg. No. 2, 528, 282, owned by Intuit Inc. Tr. I
(Tazelaar) 77. Intuit granted Quicken Loans an exclusive,
nontransferable, non-assignable, perpetual license to the
“QUICKEN LOANS” mark. Tr. I (Tazelaar) 77. See also PX

8. Both Wells Fargo and Quicken Loans filed for copyright
registration of their websites earlier this year. PX114;
PX119. The copyright office granted registrations to the
website “computer program.” PX 192; PX 193. Page 3

Plaintiffs’ Businesses

9. The business of Quicken Loans consists of offering
mortgages to customers. Tr. I (Stapp) 71:1-3. Quicken Loans
services customer transactions through the Internet via the
Quicken Loans website. Tr. I (Stapp) 68:10-15.

10. Quicken Loans customers appear to have some
sophistication concerning mortgages. Currently, 85% to 90%
of the Quicken Loans business consists of customers seeking
to refinance prior mortgages, as opposed to first time home
buyers. Tr. I (Stapp) 82:25-83:2, 140:17-141:3.
Approximately 40% of these individuals are repeat customers
who are already familiar with Quicken Loans, and the
process of obtaining mortgages online. Tr. I (Stapp)

11. Wells Fargo is a financial services company offering
customers online access to various financial services and
products. Tr. I (Tazelaar) 162:9-15. Many of these services
and products are the sort that would likely be used by
relatively sophisticated consumers, such as business
services, brokerage services, wealth management services,
and estate planning. PX 103, ¶ 5. Wells Fargo has
offered financial products through the Internet since 1995.
Tr. I (Tazelaar) 164:5-7.

12. Wells Fargo has made extensive use of its name and
marks in interstate commerce in the United States and
throughout the world. See PIs.’ Proposed Findings of Fact
¶ 18. The Wells Fargo marks have been associated
with the Wells Fargo business since its founding in 1852
and they are distinctive designations of the corporation,
its services, and its website. See id. Quicken Loans also
has made extensive use of its name and mark in interstate
commerce in the United States; and its mark now is
associated with the corporation and is a distinctive
designation of the corporation, its services and its
website. See id. ¶ 23. Wells Fargo and Quicken Loans
have expended substantial resources to advertise their
products and services, including advertisement on the World
Wide Web. See Page 4 id. ¶¶ 21 & 24. Both
entities are widely recognized as industry leaders in their
respective areas of service. See id. ¶¶ 19 &

The Business of When U

13. WhenU delivers online “contextual marketing” to
computers via its proprietary software product,
“SaveNow.”[fn2] Tr. VII (Naider) 19:25-20:5.

14. Contextual marketing technology endeavors to market
products and services to consumers who have a demonstrable
interest in those products and services. Tr. VII (Naider)
22:23-24:20. Traditionally, contextual marketing has been
conducted by assembling large databases containing a wide
variety of personal information about individual potential
customers and their past purchasing behavior. Tr. VII
(Naider) 23:24-24:20, 27:9-18; DX 501, ¶ 23.[fn3]

15. WhenU’s proprietary software allows WhenU to deliver
contextually relevant advertising at the moment the
consumer demonstrates an interest in the product or
service, without any knowledge of the consumer’s past
history or personal characteristics. Tr. VII (Naider)

16. WhenU’s participating consumers receive contextually
relevant advertisements, delivered to their computer
screens (also known as “desktops”). These advertisements
are selected by SaveNow, based on a proprietary analysis of
the consumer’s immediate interests, Page 5 as reflected by
the consumer’s Internet browsing activity. Tr. VII (Naider)
19:25-20:5; DX 501, ¶¶ 29-36.[fn4]

17. Since launching its service in approximately early
2001, WhenU has delivered online marketing for more than
four hundred advertisers, including such well-known
companies as Bank of America, Citibank, Verizon, JPMorgan
Chase, Panasonic, Cingular Wireless, Merck, and ING Bank.
Tr. VII (Naider) 32:22-33:8; Tr. VIII (Naider) 47:16-18.
Page 6

How WhenU Distributes Its Software

18. WhenU offers its software under two brand names: “Save”
and “SaveNow.” The two applications are identical in
function; they differ only in their identifying
descriptions and method of distribution. Tr. VII (Naider)

19. Consumers typically download the “Save” and “SaveNow”
software in return for obtaining a free software
application. Tr. VII (Naider) 54:7-14. In some cases,
consumers are offered a choice between paying for a
“premium” version of the desired application, or obtaining
the desired application for free, but bundled with Save.
Tr. VII (Naider) 55:11-20. For example, the Bear Share
software application is marketed to consumers in two forms:
a premium version that costs $19.95 to download, and a free
version that comes bundled with Save. Tr. VII (Naider)
34:8-14. WhenU has also developed its own freeware
applications, including an application called “Weather
cast,” which are bundled with Save software. Tr. VII
(Naider) 20:16-18, 30:6-31:4.

20. The SaveNow software is also typically obtained as part
of a “bundle” with another software program, such as the
popular Living Coral or Living Waterfall screen savers, but
the user is not obligated to keep SaveNow in order to use
the free software. Tr. VII (Naider) 34:15-22, 54:7-12.

21. WhenU shares the revenue generated from its bundled
software with its bundling partners. Tr. VII (Naider)
54:18-24. The bundling of revenue-generating, advertising
software (“adware”) with free software programs
(“freeware”) is a common practice. Many software companies
rely on the revenue generated by advertising software in
order to offer freeware for free and to provide service and
support for their freeware programs. DX 501, ¶ 37;
DX 523, ¶¶ 74-75. Page 7

22. SaveNow is also available for download at WhenU’s
website (DX 501, ¶ 40), at the websites of WhenU’s
free applications such as www.getweathercast.com (DX 501,
¶ 39), and at certain third-party websites via a
software download prompt screen that offers a user surfing
the Internet the opportunity to download, for example,
Weather cast and Save. Tr. VII (Naider) 53:7-16; DX 538,
¶ 13; DX 539. Although many users claim not to be
aware that SaveNow has been loaded on to their computer,
the Court finds that some user assent is required before
SaveNow is downloaded. The fact that assent may be in the
form of a reflexive agreement required for some other
bundled program does not negate the fact that the computer
user must affirmatively ask for or agree to the download.

The Download Process and the SaveNow License Agreement

23. Although there are variations in the SaveNow download
process, depending upon the other applications that the
computer user is installing, certain key features of the
download remain constant. For example, during the
installation process, the consumer always receives a notice
stating that SaveNow is part of the download, and explaining
how SaveNow functions. Tr. VII (Naider) 57:18-58:22; DX
501, ¶ 38.

24. Regardless of the method of distribution, to proceed
with the installation of SaveNow, the consumer must
affirmatively accept a license agreement for SaveNow (the
“License Agreement”). Tr. VII (Naider) 61:13-15; DX 501,
¶ 38; DX 510. The License Agreement is presented to
the user in a text box with a scroll bar. DX 510. This is
the standard way in which license agreements are
incorporated into software installations. Tr. VII (Naider)

25. The License Agreement explains that the software
generates contextually relevant advertisements and coupons,
utilizing “pop-up” and various other formats. Tr. VII
(Naider) 57:19-58:23; DX 510. It also explains that WhenU
reserves the right to update or Page 8 upgrade the
software at its discretion.[fn5] Tr. VII (Naider) 60:5-10;
DX 510. The software cannot be installed unless the
consumer affirmatively accepts the terms of the License
Agreement. Tr. VII (Naider) 60:13-15.

26. Plaintiffs’ computer expert Benjamin Edelman testified
about how he obtained WhenU’s software via a software
download prompt screen at a website called
Lyricsdownload.com, using the phrase “drive by download” to
describe this method of distribution. On cross-examination,
Mr. Edelman conceded that the software download prompt
screen offers the user the opportunity to read the License
Agreement and tells the user that accepting the software is
deemed to be an assent to its terms. Tr. VII (Edelman)
100:4-24. See also DX 538, ¶ 13; DX 539. Mr. Edelman
also conceded that the distribution of software via a
download prompt screen is a common practice, and is used by
a variety of distributors for a variety of different
purposes. Tr. VII (Edelman) 98:25-99:9.[fn6]

Uninstalling WhenU’s Software

27. Consumers can uninstall WhenU’s software from their
computers if they no longer wish to have it. Tr. IX
(Reinhold) 33:5-17; Tr. VII (Naider) 52:5-7. Once
uninstalled, the software will cease to operate or show
advertisements or coupons on the consumer’s computer. DX
501, ¶ 41.

28. When a user removes or “uninstalls” a program bundled
with Save, the Save software is automatically uninstalled
along with it. Tr. VII (Naider) 33:21-34:2. The Save Page
9 software supports the associated program and cannot be
uninstalled without also uninstalling that associated
program. Tr. VII (Naider) 49:15-50:16. SaveNow can be
uninstalled separately from any freeware program with which
it was downloaded.

The World Wide Web

29. Since 1996, millions of computer users have become
regular users of the Internet and the World Wide Web. Tr.
IV (Edelman) 111-12. The Internet is a network of millions
of interconnected computers, through which text, images and
sounds are transported and displayed by an application
called the World Wide Web (the “Web”). Tr. IV (Edelman)

30. Much of the information on the Web is stored in the
form of “web pages,” which can be accessed through a
computer connected to the Internet(available through
commercial Internet service providers or “ISPs”), and
viewed on a PC user’s computer screen using a computer
program called a “browser,” such as Microsoft Internet
Explorer or Netscape Navigator. Tr. IV (Edelman) 107-09.

31. Web pages are only perceivable by the user by viewing
them on the computer screen through the use of a browser.
Tr. IV (Edelman) 109; Tr. VII (Naider) 28. 32. A web page
is identified by its own unique Uniform Resource Locator
(“URL”) (e.g., http://www.wellsfargo.com), which ordinarily
incorporates its name or the trademark of the website
operator (e.g., Wells Fargo). Tr. I (Tazelaar) 165.

33. “Websites” are locations on the World Wide Web
containing a collection of web pages, much like pages of a
book. Tr. IV (Edelman) 108. The 3-dimensional metaphor of
the computer screen as a “desktop” is often used to discuss
the display of text and images on a user’s computer screen.
Tr. IV (Edelman) 116-17.

34. The computer screen is composed of a series of picture
elements (called “pixels”). Tr. IV (Edelman) 117-19. Page

35. Pixels are arranged in a single layer of horizontal and
vertical rows that form a grid on the computer screen. Tr.
IV (Edelman) 117-18; Tr. IX (Reinhold) 44. The particular
color of each individual pixel which, taken together, make
up the image displayed on the 2-dimensional computer
screen, is determined by instructions received from the
underlying computer program. Tr. IV (Edelman) 117-19.

36. A series of events must transpire in order for a user
to view a web page via an Internet browser on his or her
computer screen. Tr. IV (Edelman) 119-20.

37. First, the remote server on which the computer code for
a particular website is maintained sends the code to the
user’s web browser. Tr. IV (Edelman) 120.

38. Second, the PC’s browser then reads the code to
determine how each pixel that makes up the computer screen
should illuminate in order to create the specific on-screen
display for that particular website. Tr. IV (Edelman) 120.

39. Third, the PC’s browser then conveys specific
instructions to the Windows operating system, which, in
turn, will send these instructions to the PC’s video card.
Tr. IV (Edelman) 120. These instructions are stored in the
video memory frame buffer portion of the PC’s video card.
Tr. IV (Edelman) 121-22.

40. Finally, the video card, thereupon, causes each pixel
on the computer screen to illuminate so as to create the
specific 2-dimensional on-screen display of the website.
Tr. IV (Edelman) 120.

The Windows Environment in Which WhenU Operates

41. WhenU’s software is designed to operate within the
Windows computer operating system, popularized by
Microsoft. DX 501, ¶ 11. Windows is the most widely
Page 11 distributed software application ever written,
currently in use by roughly 95% of computer users. Tr.
IX(Reinhold) 36:13-14.

42. In the Windows operating system, the computer “desktop”
functions as a multi tasking environment in which numerous
software “applications,” such as spreadsheets, word
processing programs, Internet browsing software, e-mail
software and instant messaging software, may all run
simultaneously. DX 523, ¶¶ 28-36; DX 501,
¶ 12.

43. This graphical computer “desktop” was intentionally
designed to represent what a user would experience when
using an actual physical desktop, with virtual replicas of
file folders, text, files, spreadsheets, calendars,
rolodexes, and so on. Tr. VIII (Reinhold) 127:22-128:7. The
computer desktop thus gives the user the impression of
operating in a three dimensional space in which items can be
moved on top of and underneath each other. Tr. VIII
(Reinhold) 128:8-129:9. Accordingly, while a display on a
computer screen is literally two dimensional, it can
properly be viewed as a three dimensional presentation as a
matter of user perception. Tr. VIII (Reinhold) 127:15-20.

44. When a user opens a software application, it is
launched in what is known as a “window,” a boxon the user’s
desktop within which all of the functions of that
application are displayed and operate. Tr. IV (Edelman)
110:3-13; DX 501, ¶ 13. An application is
simultaneously represented by a button on the “task bar,”
the strip that typically runs along the bottom of the
desktop. DX 501, ¶ 13. A window can be enlarged or
“maximized” to fill the entire computer screen, or reduced
to take up a smaller area. Tr. IV (Edelman) 112:9-19; DX
501, ¶ 13.

45. Over the past two decades, operating a computer by
manipulating overlapping windows has become a familiar
process to personal computer users everywhere. Tr.
IX16:1-11; DX 523, ¶ 35. Page 12

Connecting to the Internet in the Windows Environment Page

46. To access the Internet in the Windows environment, a
user must establish a connection to the Internet, either
over a telephone modem or some other form of Internet
connection. Once such a connection has been established,
the user will typically launch a software application known
as a “browser,” such as Internet Explorer or Netscape. Tr.
IV (Edelman) 108:16-22; DX 501, ¶ 15. A user can
have multiple browser windows open simultaneously. Tr. I
(Stapp) 116:20-117:8.

47. When launched by the user, the browser, like any other
Windows-based software application, opens in a new window.
Tr. IV (Edelman) 112:11-12. Within this window, the user
interacts with the browser to access various websites on
the Internet. Tr. IV (Edelman) 107:18-108:22; DX 501,
¶ 15.

48. The user can directly access data contained in a
particular website by entering the website’s address (or
“URL”) into the address box in any such open browser
window. Alternatively, the user may search for websites of
interest by utilizing a search engine, such as Yahoo! or
Google, and then access those websites by clicking on the
resulting links displayed as listings. A user may also
reach a particular website by clicking on a “hyperlink”
embedded in the text or graphics of a webpage. Tr.VIII
(Reinhold) 129:10-24; DX 523, ¶ 21.

49. When a user attempts to access a webpage, the server
hosting the webpage sends information in the form of a file
back to the user’s browser program. Tr. VIII (Reinhold)
130:8-15. That file consists simply of lines of text
written in Hypertext Markup Language or “HTML.” Tr. VIII
(Reinhold) 131:6-13, 132:5-25; DX 523, ¶¶ 16,
22; DX 570.

50. The browser then interprets the HTML code file, and
taking that information in conjunction with the user’s own
browser settings, requests that the Microsoft Windows
operating system open a window to display the webpage. The
operating system, in turn, takes all that information from
the browser, combines it with information concerning the
user’s hardware configuration and the competing claims of
other software programs, and then displays content in a
window. Tr. VII1130:16-23; DX 523, ¶¶ 37-40.
Page 14

51. The HTML code identifies various elements that help
determine how the webpage will ultimately be rendered on a
computer user’s screen, but it does not provide an actual
pixel-by-pixel mapping for rendering the webpage. Tr. VIII
(Reinhold) 131:25-132:4; Tr. IX (Reinhold) 4:10-14. A wide
variety of other factors will have a significant effect on
the ultimate appearance of the webpage on the user’s
screen, including the user’s ability to customize the
browser’s settings. Tr. IX (Reinhold) 7:13-8:14; Tr. VII
(Edelman) 58:8-21.

Windows Permits the Display of Multiple Websites in Multiple

52. The Windows environment permits a user to have multiple
browser windows open simultaneously, each displaying a
different webpage. Tr. I (Stapp) 116:20-117:8. As with
other applications open on a user’s desktop, each separate
browser window can be opened or closed, minimized or
maximized, and moved around the screen. Tr. VII (Edelman)
62:1-13. The user can select which window appears in front
of which other windows at any given time, in much the same
way as a person can re-order a stack of papers on his or
her desk. DX 523, ¶ 36; Tr. VIII (Reinhold)
125:7-23, 128:25-129:9; DX 501, ¶¶ 11-12.

53. There are many applications that a user can run while
browsing the Internet that cause additional windows to
appear automatically in front of an open browser window.
For example, a user may be viewing a webpage (e.g.,
cnn.com), when the user’s electronic mail or
instant-messaging software (e.g., Microsoft Outlook or AOL
Instant Messenger) launches a message in front of the
browser window that the user is viewing. Tr. VI (Edelman)
62:21-63:3; DX 523, ¶ 40; DX 501, ¶ 18; DX

54. Users have ultimate control over what programs run on
their computers, when they are run, and what they are
commanded to do. The user owns and controls the computer
and the computer display, including the pixels that
generate that display. DX 523, ¶ 25; Tr. VI
(Edelman) 79:10-25. Page 15

How WhenU Delivers Advertisements to Participating
Consumers Page 16

55. Advertisements shown by WhenU software are set up by
WhenU’s Advertising Operations team. Tr. VIII (Naider)
5:24-6:3. The Advertising Operations Team receives creative
copy from an advertiser, places the ad on a WhenU server,
then “maps” the advertisement using an ad set-up table. Tr.
VIII (Naider) 6:4-15, 18:6-19. Each advertisement is
assigned a name and a variety of parameters such as size,
priority, and frequency. Tr. VIII (Naider) 6:4-15.

56. The Advertising Operations Team “maps” the ad by
determining the various categories in the Directory (such
as “Air Travel”) and keyword algorithms that will trigger
the appearance ofthe advertisement, subject to priority and
frequency limitations. Tr. VIII (Naider) 7:12-10:8.

57. When the Advertisement Operations Team is done, the
data is automatically recorded into the proprietary WhenU
Directory (the “Directory”). Tr. VIII (Naider) 17:21-18:14.
The Directory is delivered to and saved on the consumer’s
desktop when the consumer installs the software, and
optimized and updated on a daily basis. DX 501, ¶ 28.

58. As of July 1, 2003, the Directory contained
approximately 32,000 URLs and URL fragments, 29,000 search
terms and 1,200 keyword algorithms. Tr. VII (Naider)
98:10-99:6. The Directory categorizes these elements into
various categories in much the same way as a local Yellow
Pages indexes businesses into categories. These categories
are the “heart” of WhenU’s system for delivering
advertisements. Tr. VIII (Naider) 8:19-9:4, 27:25-28:5; DX
501, ¶ 28.

59. As a participating consumer browses the Internet, the
SaveNow software studies the user’s browsing activity and
compares it against the elements contained in the
Directory. Simultaneously, the SaveNow software determines
whether: (a) any of those elements are associated with a
category in the Directory, and (b) whether those categories
are associated with particular advertisements. If the
software finds a match, it identifies the associated
product or service category, determines whether appropriate
ads are available Page 17 to be displayed, and, if so,
selects an ad based on the system’s priority rules, subject
to internal frequency limitations. Tr. VIII (Naider)
13:21-14:25; DX 501, ¶¶ 30-31.

60. Web addresses and search terms are included in the
WhenU Directory solely as an indicator of a consumer’s
interest. DX 501, ¶ 32. For example, the
www.wellsfargo.com web address is included in the
“finance.mortgage” category of the WhenU Directory in order
to identify consumers who are potentially interested in
mortgages. Thus, if a consumer were to enter into the
address box in an open browser window or conduct a search
using a search engine by typing in the words “Wells Fargo,”
SaveNow would detect that activity and scan the proprietary
directory for a match to a WhenU category such as
“finance.mortgage.” DX 501, ¶ 31.

61. The SaveNow software might also determine that the
consumer is interested in a particular category of products
or services if it found certain combinations of words
(“keyword algorithms”) in the content of the webpage
visited. For example, if a participating consumer accessed
a webpage that contained two occurrences of the word
“buying,” two occurrences of the word “home” and four
occurrences of the word “mortgage,” the SaveNow software
might determine that the consumer was interested in the
“finance.mortgage” category. Tr. VIII (Naider) 9:5-20; DX
501, ¶ 33.[fn7]

62. Under WhenU’s category system, any given ad will
ultimately be mapped to scores of discrete elements (i.e.,
URLs, search terms, keyword algorithms) that are related
topically. Tr. VIII (Naider) 7:21-9:4. Thus, WhenU
advertisements do not specifically target individual
websites such as Wells Fargo and Quicken Loans. For
example, Mr. Edelman Page 18 implied in his original
declaration that an advertisement for “GetSmart” was
specifically targeted at the Quicken Loans homepage. PX 109,
¶ 26. In fact, the complete mapping of that ad in
the Directory reveals that it is mapped to 13 separate
categories, each of which represents many URLs and search
terms. DX 569; Tr. VIII (Naider) 19:7-19. The URL for the
Quicken Loans homepage is only one of over hundreds, if not
thousands, of URLs that could trigger this ad via the
category system. Tr. VIII (Naider) 21:2-11.[fn8]

WhenU Sells Advertising On a Category Basis

63. WhenU sells advertising to advertisers on the basis of
sales categories, which are grouped into certain product
and service categories. Tr. VIII (Naider) 4:12-23,
63:21-64:5. These sales categories are broader than the
categories used for mapping advertisements. Tr. VIII
(Naider) 7:21-8:6. Although the sales categories are made
public for marketing purposes, the categories used to map
ads are known only to the WhenU Advertising Operations
Team, and are not disclosed or in any way promoted to
WhenU’s advertisers, in-house sales team, or independent
sales agents. Tr. (Naider) 34:13-18.

64. WhenU does not guarantee advertisers that their
advertisements will appear when participating consumers
access content from a particular website. WhenU guarantees
Page 19 only that advertisements will be shown to consumers
who appear interested in a particular product or service
sales category. Tr. VIII (Naider) 34:1-18; DX 501, ¶

65. WhenU does not allow its own advertisers to be excluded
from any category as a condition of purchasing advertising
from WhenU. Tr. VII (Naider) 45:25-46:11. Thus, WhenU can
and does show ads for its advertisers’ competitors —
ads that may well appear when a user has accessed the
advertiser’s website. Id.

66. In sum, WhenU does not target specific websites either
in its software or in selling its services to advertisers.
Rather, WhenU’s advertisements are displayed according to
the product category in which the consumer is interested
and limited by factors such as the number of advertisements
the consumer has already seen. Thus, it is the user’s
actions on his or her desktop that ultimately determine
whether that consumer will see a particular advertisement.
DX 501, ¶¶ 31, 36, 46. Page 20

WhenU Ads Are Displayed in Separate, Conspicuously Branded
Windows, and Specifically Advise Participating Consumers
That They Are From WhenU, and Are Not Sponsored by Any
Website the User May Be Viewing

67. The advertisements and coupons that SaveNow delivers to
a participating consumer’s desktop appear in a window (the
“WhenU Window”) which is separate and distinct from any
other window already open on the desktop. Tr. VI(Edelman)
63:4-16;Tr. VII (Naider) 46:19-47:11; DX 523, ¶ 49;
DX 501, ¶ 43.

68. SaveNow advertisements take various formats, such as:
(1) a small format “pop-up” window that typically appears
flush to the bottom right-hand corner of the consumer’s
desktop; (2) a larger “pop-under” window that appears
behind some or all of the browser windows that the consumer
is viewing; (3) a horizontal “panoramic” window that runs
along the bottom of the user’s computer screen. Regardless
of the format used, the WhenU Window is a distinct,
separate window unique to the SaveNow application and
represented by its own button on the user’s task bar. Tr.
VII (Naider) 43:16-45:20; DX 501, ¶ 44.

69. Many SaveNow advertisements — approximately 50%
of the total — are pop-under ads. Tr. VII (Naider)
45:16-20. WhenU’s pop-under ads are designed not to be
displayed to the user until after the user closes or
minimizes the browser window containing the webpage that
the user was viewing when the ad was triggered by the
SaveNow software. Tr. VII (Naider) 44:15-23, 45:10-12. Thus,
unless manipulated by the user, a SaveNow pop-under ad
triggered by a Wells Fargo or Quicken Loans URL will not be
displayed on the user’s screen at the same time as the
webpage with that URL. DX 501, ¶ 49; Tr. VII
(Edelman) 68:12-16; Tr. VII (Naider) 44:11-23.

70. SaveNow pop-up ads appear as a small box in the bottom
right hand corner of the user’s computer screen. Tr. VII
(Naider) 43:20-44:1; DX 501, ¶ 45. Depending on the
site visited, the browser size, and the user’s screen
resolution configuration, a SaveNow pop-up ad may or may
not appear in front of content in the underlying website.
Tr. VII (Edelman) 65:15-24. Page 21

71. If the underlying webpage (or any other underlying
windows, such as a Word document) is clicked on after the
pop-up format advertisement is displayed, the pop-up will
no longer appear at the front of the screen, although it
will still be present in the user’s task bar at the bottom
of the screen. DX 501, ¶ 54.[fn9]

72. At any time a user may make any form of SaveNow
advertisement disappear permanently by clicking on the “X”
box at the top right hand corner of the ad. Tr. VII
(Naider) 43:9-15. The “X” box is a standard feature of the
Windows operating system and Internet users are generally
familiar with its function. Tr. VII (Naider) 43:14-15; DX
501, ¶ 53; Tr. IX (Reinhold) 16:14-23.

73. The WhenU Window is labeled as such. SaveNow ads
display a green “$” symbol in the corner of the window and
the SaveNow designation. Tr. VII (Naider) 36:17-19. Save
ads contain a bull’s eye and the “SAVE!” designation. Tr.
VII (Naider) 46:14-18.[fn10]

74. All SaveNow advertisements contain a notice stating:
“This is a WhenU offer and is not sponsored or displayed by
the website you are visiting. More. . . .” Tr. VII (Naider)
36:19-23. When the consumer clicks on the word “More . .
.,” a dialog box opens that contains information about
SaveNow and a direct link to the “Frequently Asked
Questions” page of WhenU’s website. Tr. VII (Naider)
38:2-39:7; DX 501, ¶ 48.

75. SaveNow advertisements also contain a”?” symbol in the
corner, which is also a typical feature of a window in the
Microsoft Windows operating system. Clicking on the”?”
symbol opens the same window as when consumers click on the
“More . . .” link described above. Tr. VII (Naider)
37:22-38:10; DX 501, ¶ 48. Page 22

76. SaveNow does not automatically cause any advertiser’s
webpage to be displayed on a user’s desktop. After the
WhenU advertisement is displayed, the user can elect to
access the advertiser’s website by clicking on the WhenU
Window. Tr. VII (Naider) 39:10-20. The user also can elect
not to access the advertiser’s webpage, and can easily
close the WhenU window or minimize it for later viewing.
Tr. VII (Naider) 42:24-43:15; DX 501, ¶¶

77. A user who clicks on a SaveNow advertisement is taken
to the advertiser’s webpage. Tr. VII (Naider) 39:10-20; DX
501, ¶ 52. A consumer who has accessed the
advertiser’s webpage can return to the webpage that was
previously on the user’s screen by clicking on the Internet
browser’s “Back” button. Tr. V (Edelman) 12:16-21; Tr. VII
(Naider) 39:21-40:6; DX 501, ¶ 52. This function will
work even if the user is accessing a secure webpage at the
time the advertisement is clicked. Tr. IX (Reinhold)

WhenU Advertisements Do Not Use Plaintiffs’ Trademarks

78. WhenU’s advertisements do not use the words “WELLS
trademark registered to plaintiffs, in the advertisements
themselves. DX 501, ¶ 32.

79. As discussed above, URLs are included in the Directory
only to identify the website itself for the purpose of
determining the interests of participating consumers.
DX501, ¶ 32. WhenU does not use any of plaintiffs’
trademarks to identify goods or services, to indicate any
sponsorship or affiliation with the goods or services
advertised by WhenU, or to identify the source or origin of
any goods or services advertised by WhenU.

80. The use of keyword terms in connection with the
delivery of advertisements is a common practice on the
Internet, and is a source of revenue for search engines
such as Google, and other Internet companies. DX 523,
¶¶ 54-56.

WhenU Advertisements Do Not Appear “On” Plaintiffs’ Websites

81. Plaintiffs take the position that SaveNow
advertisements appear “on” the plaintiffs’ websites. Such
usage misconstrues the technical reality of the Internet.
Page 23

82. A “website” is a series of related webpages, whose
program code is located in separate, distinct servers
controlled by the owners of the website. DX 523, ¶
43; Tr. IV (Edelman) 108:8-11. When a user accesses a
website, the website is not transferred to the user’s
desktop. All that exists on the computer screen is an image
generated by the user’s web browser based on instructions
received from the text-based HTML code of the webpage. Tr.
VIII (Reinhold) 130:8-23, 132:5-24; DX 523, ¶ 44. At
that point, there is no connection between the individual
user’s computer and the website. Tr. IX (Reinhold) 6:3-10.

83. Having caused the computer to display a page from one
website, the user may request the computer to
simultaneously display a page from a different website. The
user will then have pages from two different websites on
his desktop. If the user has called the second website page
up in a new browser window, it will appear in front of the
page from the first website and the only indication that
the first website has been accessed will be the button on
the user’s task bar. However, as discussed above, the user
can easily size his browser windows to cause pages from
both websites to appear on his screen, in windows that
overlap or not, as the user chooses. Nothing that an
individual does in the window displaying one website
interferes with data transmitted to or from another
website. Likewise, nothing that an individual does in a
window displaying a different application (e.g., a word
processing or instant messenger program) interferes with
data transmitted to or from a website which the user has
accessed. A website resides on its own servers where it is
protected from tampering by “fire walls” and other Internet
security procedures. DX 523, ¶¶ 42-43.

84. SaveNow interacts only with the web servers of WhenU or
WhenU’s advertisers. Tr. VII (Edelman) 77:11-78:4; Tr. VII
(Naider) 99:7-12. It has nothing to do with plaintiffs’ web
servers. Tr. VIII (Naider) 13:21-14:25. As plaintiffs’ own
expert acknowledged, SaveNow cannot and does not access the
servers where plaintiffs’ websites are physically located.
Tr. VII (Edelman) 77:11-78:4.

85. Defendant’s SaveNow software has no physical
relationship to any other software application that may be
open on a user’s desktop, including, but not limited to,
Page 24 windows in which images associated with plaintiffs’
websites are displayed. The fact that a window containing a
SaveNow ad and the windows in which plaintiffs’ websites
may be displayed may be visually stacked on top of each
other on the user’s screen is purely a function of a
computer’s graphical interface which is designed to make a
computer “desktop” look and act like a real desk. Tr.
IX(Reinhold) 15:15-21, 16:1-17:5; DX 523, ¶¶

WhenU Advertisements Do Not “Modify” Plaintiffs’ Websites

86. SaveNow does not transmit, display or reproduce images
of plaintiffs’ websites. Tr. VII (Naider) 82:4-5. All
SaveNow does is display an image of an advertisement which
contains a link to a site designated by the advertiser. The
participating consumer may access that site, if the
consumer chooses, by clicking on the link embedded in the
advertisement. Tr. VII (Naider) 39:10-20.

87. Plaintiffs contend that because the appearance of a
SaveNow advertisement alters the current content of video
memory, plaintiffs’ webpages are “modified” whenever a
SaveNow ad appears while a user is also displaying one of
their webpages. The Court rejects this contention.

88. Once a computer browser renders a webpage on a window,
a copy of the HTML code file associated with that web page
is saved into the computer’s general random access memory
or “RAM.” Tr. IX (Reinhold) 11:17-22. The RAM copy of the
HTML file is used to help the computer instantly redisplay
the webpage image in the event that some other window has
subsequently obscured all or part of the webpage image. Tr.
IX (Reinhold) 12:7-13:5. The appearance of a SaveNow ad
does not interfere with the storage of another webpage’s
HTML code in RAM memory or erase another webpage’s HTML
code. Tr. VII (Edelman) 76:15-77:8, 80:22-81:3; Tr. IX
(Reinhold) 15:15-21, 27:3-9.

89. In addition to ordinary RAM memory, a computer
maintains a temporary form of memory called video memory
that forms part of the computer’s display system. Tr. IX
(Reinhold) 13:6-12. The video memory simply contains a
pixel-by-pixel “snapshot” of whatever Page 25 happens to
be displayed on a computer screen at any given instant. Tr.
IX (Reinhold) 13:17-25.

90. Plaintiffs contend that because the appearance of a
SaveNow advertisement alters the current content of video
memory, plaintiffs’ webpages are “modified” every time a
SaveNow ad appears while a user is also displaying one of
their web pages. However, these pixels are part of the
user’s physical computer, and are not part of any webpage
that the user might happen to be viewing at the time. Tr.
VII (Edelman) 79:10-25.

91. Further, because the pixel display is the means by
which any image on a computer screen is generated, whenever
the display changes, there is a corresponding change in the
content of video memory. Tr. IX (Reinhold) 14:1-10. Video
memory is modified when a user opens a new application,
receives an instant message, or uses his mouse to move the
cursor across the screen. Tr. VII (Edelman) 78:5-79:9; Tr.
IX (Reinhold) 14:21-15:9. As long as a user is actively
using the computer, the content of video memory is altered
and updated every 1/70th of a second. Tr. IX (Reinhold)
14:21-15:9. Accordingly, the alteration of video memory is
an ephemeral occurrence, and does not constitute a
modification of the plaintiffs’ webpages.

WhenU Advertisements Do Not “Frame” Plaintiffs’ Websites

92. The Court rejects the contention that SaveNow “frames”
plaintiffs’ websites.

93. Framing occurs when one webpage displays the content of
another webpage within its own borders. If the outer window
is moved, the framed page moves with it simultaneously; if
the outer window is closed or minimized, the framed page
closes or minimizes as well. Tr. IX (Reinhold) 29:1-17. The
purpose of framing is to create a single seamless
presentation that integrates the content of the two webpages
into what appears to be single webpage. Tr. IX (Reinhold)
29:1-31:3. Page 26

94. SaveNow ads appear in entirely separate windows that
can be moved independently without moving any other
webpage, and can be closed without closing or in any way
affecting any other webpage. Tr. IX (Reinhold) 29:18-30:21.
Hence, SaveNow ads do not “frame” and are not “framed by”
any other window, such as the window in which one of
plaintiffs’ webpages might be displayed.

WhenU Protects the Privacy and Security of Its Users

95. WhenU collects only the information necessary to run
its system and to be able to compensate its partners and
invoice its advertisers. Tr. VII (Naider) 76:4-11. This
information consists of the U RL, search term or keyword of
the webpages that triggered the delivery of a WhenU
advertisement, and whether the user clicked on the
advertisement. Tr. VII (Naider) 75:19-76:3. This
information is collected by WhenU on an aggregate basis and
is not associated with an individual user or individual
profile. Tr. VII (Naider) 76:17-77:20. WhenU does not
collect a user’s “click stream data,” i.e., information
concerning the history of webpages visited by the user. Tr.
VII (Naider) 76:12-16, 83:18-84:23. Nor does WhenU use
cookies to track the activities of SaveNow users. DX 547;
Tr. VII (Naider) 87:3-15; DX 547.

96. Like most entities that operate on the Internet,
including Wells Fargo and Quicken Loans, WhenU uses the IP
address of its users. The sole purpose of using the IP
address is so that SaveNow can use the Internet to send ad
display information to the WhenU servers. Tr. VII (Naider)
79:15-19. WhenU does not use IP addresses to identify
individual users. Tr. VII (Naider) 80:21-23.

97. The Court additionally finds no support in the record
for plaintiffs’ contention that WhenU somehow specifically
targets “secure” webpages. Tr. VII (Naider) 102:1-18.
Although it is possible to view a SaveNow advertisement
while accessing a secure webpage, this does not disrupt the
security of that webpage. A consumer who clicks on a
SaveNow ad can easily return to the secure webpage that was
previously on the user’s screen by clicking on the Page
27 Internet browser’s “Back” button. Tr. IX (Reinhold)
27:10-28:16. It is also a standard feature of the Microsoft
Windows operating system to provide a warning to users if
they do something that would cause them to leave a secured
webpage, giving the user the opportunity to cancel that
decision. Tr. IX (Reinhold) 27:22-25; 28:10-16.

Plaintiffs Have Failed To Submit Competent Evidence of
Likelihood of Confusion from SaveNow Advertisements

98. Plaintiffs assert that a WhenU ad displayed on a
computer screen at the same time as a consumer is viewing a
page from one of their web sites is inherently confusing to
the consumer who, according to plaintiffs, believes it
emanates from the plaintiffs’ websites. Memorandum in
Support of Plaintiffs’ Motion for Preliminary Injunction
(“Plaintiffs’ P.I. Mem.”), pp. 6-7. However, plaintiffs
have not presented any evidence of actual consumer

99. By contrast, there is good reason to believe that the
typical SaveNow user would not perceive a WhenU
advertisement as sponsored by or affiliated with the
plaintiffs’ websites. First, SaveNow users are accustomed
to receiving offers from WhenU while surfing the Web. DX
501, ¶ 46. For example, a SaveNow user shopping for
a financial services online would be exposed to SaveNow ads
for obvious competitors such as Ameriquest Mortgage (PX
125), Brown & Company (PX 130), and Lower My Bills.com (PX
135). It is therefore unlikely that they would suddenly
think that a SaveNow Ameriquest Mortgage ad comes from Wells
Fargo or Quicken Loans. DX 523, ¶ 50. Second,
SaveNow ads are identified by WhenU, and bear a prominent
notice and disclaimer stating that they come from “WhenU”
and are “not sponsored or displayed by the website you are
visiting.”[fn11] Tr. IX (Reinhold) 25:5-20; 45:22-46:1.
Third, SaveNow ads appear in a distinct window, bear all of
the indicia of a distinct software application, and do not
relate in any way to any other window on the user’s
screen. Page 28 Tr. IX (Reinhold) 16:12-17:5, 29:18-30:21.
Internet users understand that different software
applications run in different windows. Tr. IX (Reinhold)

100. Plaintiffs argue that their customers are especially
likely to be confused because they are “not particularly
sophisticated.” Plaintiffs’ P.I. Mem., p. 14. However,
plaintiffs have not supported that contention with
evidence. To the contrary, Mr. Neal acknowledged that people
who decide to obtain a mortgage online may be more
knowledgeable about the Internet than ordinary users. Tr.
III (Neal) 12:18-13:1.

101. In addition, consumers are likely to be attentive when
attending to their financial affairs (Tr. II (Neal)
141:16-142:4; Tr. IV (Jacoby) 21:7-19), and are especially
attentive when obtaining a mortgage which is “for most
people the largest financial decision they make.” Tr. I
(Stapp) 141:16-19. See also Tr. I (Stapp) 141:23-142:14
(decision to obtain a mortgage involves study and
research); Tr. III (Neal) 12:18-13:1 (the decision to
obtain a mortgage is more significant in the life of a
consumer than the decision to buy contact lenses).

102. The only evidence of potential consumer confusion
presented by plaintiffs was the testimony of William Neal,
whom plaintiffs offered as an expert in “consumer surveys
[and] marketing research.” Tr. II (Neal) 86:24-87:1. Mr.
Neal’s testimony was based on surveys he conducted for the
plaintiff in: (a) Washington post. Newsweek Interactive Co.
(“Washington Post”) v. The Gator Corp. (the “Gator Survey”),
an action not involving WhenU, and (b) 1-800 Contacts, Inc.
(“1-800”) v. WhenU, a lawsuit pending in the Southern
District of New York (the “1-800 Survey”). See Tr. II
(Neal) 88:3-8; PX158; PX 159. These plaintiffs were also
represented by the Gibson, Dunn & Crutcher attorneys who
represent plaintiffs in this case. Tr. II (Neal) 130:3-22.

103. Plaintiffs did not explain why Mr. Neal did not
prepare a new survey for this matter. The Gator Survey was
conducted in early June 2002. Tr. II (Neal) 123:4-21. The
1-800 Page 29 Survey, which was modeled on the Gator
Survey, took all of 14 days to complete.[fn12] Research
involving the Internet may become obsolete in a matter of
months. Tr. IV(Edelman) 100:1-12. See also Tr. VIII
(Reinhold), 121:3-9 (Internet changes very rapidly). Mr.
Neal’s testimony that the surveys’ results would not differ
substantially if the data were collected today is based on
speculation. Tr. III (Neal) 21:4-7. Indeed, Mr. Neal
admitted that consumer perceptions of Internet advertising
might have changed since he conducted the surveys, and that
the only way to know for sure would have been by testing,
which he did not do. Tr. III (Neal) 133:6-134:3.[fn13]

104. Mr. Neal’s methodology was severely criticized by
defendant’s witness, Dr. Jacob Jacoby, an extremely well
qualified expert in consumer behavior and research
methodology.[fn14] Page 30

Mr. Neal Did Not Show the Survey Respondents Any WhenU
Pop-Up Ads or Other Stimuli

105. One flaw in Mr. Neal’s methodology was his failure to
show the respondents any demonstrative stimulus. Tr. II
(Neal) 134:15-19; PX 158; PX 159. Mr. Neal did not show the
1-800 respondents an exemplar of a WhenU ad, nor did he
ensure that the respondents had WhenU ads in mind —
as opposed to pop-up ads generated by Gator, or a search
engine or a commercial website. Mr. Neal did not do anything
to find out whether his respondents were even familiar with
SaveNow ads. Tr. II (Neal) 138:20-141:2. Indeed, Mr. Neal
conceded that he did not know with any degree of scientific
certainty whether any of the respondents had ever seen a
SaveNow ad. Tr. II (Neal) 139:7-10.

106. In lieu of showing any actual ads, Mr. Neal provided a
generic description of a pop-up ad at the beginning of the
surveys. PX 158, Tab C; Tr. II (Neal) 136:8-10, 138:9-19.
This description explained that pop-up advertisements (a)
usually appear in the middle of the user’s screen, (b)
partially block out the content of the underlying web page,
(c) may automatically take the user to another web site, and
(d) may not close when the user clicks the “x” in the upper
right-hand corner. PX 158, Tab C & PX 159. The survey
instructed respondents to use this description in answering
the questions in the survey (PX 158, Ex. C, p. 31), and Mr.
Neal conceded he intended respondents to think of pop-up
ads in the manner that he described them for purposes of
responding to the survey. Tr. Vol. II (Neal) 138:9-19.

107. As Mr. Neal conceded (Tr. II (Neal) 156:4-9), his
definition does not describe the defendant’s
advertisements.[fn15] WhenU pop-up, or small format,
advertisements appear Page 31 in the bottom right-hand
corner of the screen (Tr. VII (Naider) 35:18-36:12) and do
not necessarily block any webpage content. See, e.g., PX
128. More than half of WhenU advertisements are pop-under
ads which do not appear on the user’s screen until after
the browser window has been closed.[fn16] Tr. VII (Naider)
44:11-45:17. WhenU ads do not take the user to another
website without an affirmative click by the user (Tr. VIII
(Naider) 108:3-5) and can always be closed by a click on
the “x”. Tr. VII (Naider) 35:8-17. Mr. Neal conceded that a
consumer might feel differently about a pop-up ad that
automatically takes a consumer to another website (as he
described) versus an ad that does not. Tr. II (Neal)

108. The Court also rejects Mr. Neal’s effort to determine
whether respondents were confused about the source of the
ads based on their general recollection of pop-up ads they
might have seen. Tr. II (Neal) 134:15-19, 135:24-136:10. As
Dr. Jacoby testified, recall is used where the material
issue is what the consumer remembers. The recall technique
is not used to test confusion. Tr. IV (Jacoby) 31:19-34:4.

109. The Court also rejects Mr. Neal’s testimony that the
sheer number of different SaveNow ads made it impossible to
conduct a survey using actual SaveNow advertisements. Tr.
III (Neal) 25:22-23:10. Mr. Neal could have used a sampling
methodology to test a representative sample of WhenU
advertisements, using any one of a variety of accepted
scientific techniques. Tr. IV (Jacoby) 28:8-31:3. Mr.
Neal’s explanation is further undercut by his concession
that he would likely have used SaveNow ads in the 1-800
Survey had they been available to him. See PX 191 at

110. Because Mr. Neal did not show the survey respondents
WhenU ads, there is no way for anyone to know whether the
respondents had WhenU ads in mind when they answered Page
32 his questions. As Dr. Jacoby testified: “There’s
absolutely no scientific defensible foundation for
concluding any WhenU advertising caused any of the data. .
. . you can’t connect the dots. . . .” Tr. IV (Jacoby)

The Survey’s Results Cannot Be Applied in This Case Because
the Surveys Tested Universes of Respondents That Are Not
Inclusive of the Relevant Universe in This Case

111. The surveys also do not provide reliable evidence of
confusion because they did not sample the relevant universe
of people who obtain mortgages or conduct banking services
online (i.e., people who use or are likely to use
plaintiffs’ websites). The results of a survey of contact
lens users or a survey of readers of online periodicals
cannot be extrapolated with accuracy to people who use or
are likely to use plaintiffs’ online financial
services.[fn18] Tr. IV (Jacoby) 26:11-18. This is so even
if all these people share similar demographic data. Tr. IV
(Jacoby) 18:1-19:6. Of the approximately 156 million people
who use the Internet, only 28 million shop for mortgages
online. Tr. IV (Jacoby) 22:11-15. Furthermore, only 12-13%
of consumers wear contact lenses. Tr. IV (Jacoby)
25:21-26:3. Given these statistics, there is no way to
conclude that the contact lens wearing 1-800 respondents
were also persons interested in obtaining mortgages online.
Tr. IV (Jacoby) 19:7-12, 20:24-23:10, 25:19-17, 26:11-18.

112. Moreover, people conducting banking transactions or
purchasing mortgages are more likely to pay careful
attention than people buying contact lenses or perusing a
periodical. Tr. II (Neal) 141:16-142:4; Tr. IV (Jacoby)
21:7-19. A meaningful survey must take into account not
only the respondents’ demographic characteristics, but also
what they are Page 33 doing at the time because consumers
make decisions of different import with different mind
sets. Tr. IV (Jacoby) 20:24-21:19.

113. Mr. Neal’s opinion that he could extrapolate the
results of his previous surveys to users of online
financial services does not appear to be well founded.
Indeed, Mr. Neal acknowledged that there was no empirical
evidence that supports his conclusion that the Wells Fargo
and Quicken Loans website user populations are the same as
the populations he developed for the 1-800 and Gator
Surveys. Tr. III (Neal) 14:12-18.

Mr. Neal’s Survey Questions Were Biased

114. Mr. Neal’s surveys also are unreliable because he used
leading questions that may have skewed the survey results.
Tr. IV (Jacoby) 34:12-24.

115. For example, Mr. Neal improperly told respondents that
pop up ads appear “on” a website, thus suggesting the
association he was trying to establish. Moreover, Mr. Neal
admitted that some of his questions were biased. For
example, Mr. Neal admitted that Question 10 (“Do you
believe that WhenU.com was honest in informing you about
what SaveNow software did?”) was a “loaded question”
because of the suggestive nature of the word “honest.”
PX191 at p. 30; Tr. 11 (Neal) 166:8-167:7. Mr. Neal further
admitted that, when he prepared the questionnaire, he was
aware that his use of the word “honest” violated the
standard rules of framing survey questionnaires. Tr. II
(Neal) 167:3-12. See also Tr. II (Neal) 165:20-25.

Mr. Neal Did Not Rule Out Obvious Alternative Explanations
and Made Unsupported Analytical Leaps

116. Mr. Neal’s analysis of the survey data was flawed in
other respects. For example, Mr. Neal concluded that 60% of
respondents believed “pop-up ads are placed on the website
on which they appear by the owners of that web site” (PX
110, ¶ 6(e)), relying on Question 4-1, which
required respondents to agree, disagree or state no opinion
as to the statement: “I believe that pop-up advertisements
are placed on the website on which they appear by the
owners of the website.” PX 158, Tab C, p. 32; Tr. II (Neal)
168:3-5. If the Page 34 respondent indicated that he or
she agreed, Mr. Neal interpreted that to mean the
respondent believed that pop-up ads are always placed “on
the website . . . by the owners of that website”. Tr. II
(Neal) 167:14-169:24. Mr. Neal testified that respondents
who believed that pop-up ads were sometimes displayed by
website owners and sometimes not displayed by the website
owners would not have answered “Agree,” but rather said
they had “no opinion.” Tr. II (Neal) 168:6-169:19. He also
failed to consider obvious alternative explanations for his

117. Mr. Neal’s testimony is counter-intuitive. A
respondent who believed that some pop-up ads are displayed
by website owners clearly had an opinion with respect to
Q4.1. Moreover, the only evidence related to Mr. Neal’s
assumption that “Agree” meant “always agree” demonstrates
that the assumption is wrong. In response to Question 4-4
of the Gator Survey (“I believe that `Pop-Up’
advertisements are sponsored by the website on which they
appear”) more than 66% “Agreed.” Under Mr. Neal’s
interpretation, this meant that 66% of the Gator respondents
thought that pop-up ads are always sponsored by “the
website on which they appear.” However, in the next
question of that survey, Mr. Neal posed the opposite
question, “I believe that `Pop-up’ advertisements are
sometimes not sponsored by or authorized by the website on
which they appear.” If, as Mr. Neal believes, the 66% who
agreed with Question 4-4 believed that pop-up ads are
always “placed on the website . . . by the owners of that
website,” then a maximum of 34% of these respondents could
possibly have agreed with Question 4-5, that pop-up ads are
only sometimes not sponsored by the website owner. Tr. II
(Neal) 172:9-173:14. However, 47% of respondents agreed
with Q 4-5. This data indicates an error in Mr. Neal’s

118. By failing to consider and account for these and other
alternative explanations for his results, Mr. Neal violated
basic standards of scientific practice and rendered his
results unreliable. Tr. IV (Jacoby) 42:1-43:4.

The Survey Was Not Properly Administered, Did Not Contain
Control Questions to Generate an Error Rate, and Employed a
Design that Rendered the Results Uninterpretable Page 35

119. Mr. Neal failed to employ an experimental design that
established causation. As Dr. Jacoby testified, unless a
control group is used to account for the effects of
“noise,” i.e., extrinsic factors such as pre-existing
beliefs other than the stimulus at issue that could
contribute to a survey’s results, the survey’s results are
uninterpretable. Mr. Neal acknowledged that he did not use a
true control group (Tr. II (Neal) 92:17-21) and that, as a
result, his conclusions only had a 51% certainty level. Tr.
III (Neal) 24:6-25:8. While Mr. Neal asserted that a
certainty level of 51% is all that can be achieved in the
social sciences (Tr. III (Neal) 23:13-24), his testimony is
contradicted by Dr. Jacoby, who testified that the
certainty level required in the social sciences is at least
95% (Tr. IV (Jacoby) 52:25-54:14), and who provided an
example of the kind of survey design that could have been
employed to establish causation. Tr. IV (Jacoby)

120. Other problems with Mr. Neal’s survey include: (a) the
use of an Internet panel (Tr. IV (Jacoby) 45:13-47:7); (b)
the failure to use standard procedures to avoid yea saying
(Tr. IV (Jacoby) 36:24-39:20); (c)the use of compound
questions (Tr. IV (Jacoby) 37:5-6); (d) the failure to
correct for possible error through the use of control or
filter questions (for example, by testing response rates to
questions about fictional computer programs) (Tr. IV
(Jacoby) 43:8-44:21); and (e) the failure to provide an
independent check on respondents’ understanding of the
questions through the use of an in-person interviewer or
administrator. Tr. IV (Jacoby) 43:25-44:3, 45:17-46:4.

Plaintiffs Have Not Shown Irreparable Harm

121. Plaintiffs assert that WhenU advertisements cause them
irreparable harm by imposing non-compensable reputational
injury on their marks. However, plaintiffs have failed to
come forward with concrete evidence of even a single
customer or potential customer who failed to purchase
products or services from them because of WhenU.

122. Quicken Loans knew everything it needed to know to
commence an action against WhenU by November 2002, and
Wells Fargo knew everything it needed to know by Page 36
December 2002. Indeed, Wells Fargo had prepared screen shots
of SaveNow for use in litigation as early as November 2002
(Complaint, ¶ 2); Quicken Loans prepared similar
screen shots as early as September 2002. PX 136.
Nonetheless, this motion was not filed until May 20, 2003.
The dilatory behavior of the plaintiffs in prosecuting
their claims, and their strategic decision to defer a
trademark case while they fulfilled the jurisdictional
requirements for a copyright claim, are inconsistent with a
finding that WhenU’s ads are causing the plaintiffs’
irreparable injury.

WhenU Does Not Link to Plaintiffs’ Websites

123. Plaintiffs further contend that WhenU’s advertising
injures them because it puts them at risk with their
regulators. Specifically, plaintiffs have proffered certain
federal banking regulations relating to weblinking, and
suggested that these regulations apply to WhenU’s
advertisements. However, plaintiffs have offered no
competent testimony to that effect and a simple reading of
the alleged regulations on which plaintiffs rely shows that
they are concerned only with federal banks which employ
“weblinking” with various websites and with which they have
“joint marketing relationships.” See, e.g., Electronic
Activities, 67 F. Reg. 34, 992 at 35, 002 (May 17, 2002).

124. The SaveNow software does not link to any website
other than the websites of WhenU and WhenU’s advertisers
and WhenU has no co-branding relationships with any banks.
Tr. VIII (Naider) 107:19-108:2. No regulatory agency has
ever approached WhenU to express concerns about the effects
of WhenU software on the regulation of banks or financial
services companies. Tr. VIII (Naider) 108:6-13. Indeed,
plaintiffs have failed to proffer any evidence that federal
regulators have ever inquired about or expressed concerns
about WhenU or WhenU advertising.

Plaintiff Quicken Loans Has Actually Benefitted from SaveNow

125. Although plaintiffs both assert having been harmed by
SaveNow, Quicken Loans has actually benefitted from WhenU
advertising. Page 37

126. The Quicken Loans website is part of the overall
Quicken.com website. The Quicken.com website is owned by
Intuit, which owns Turbo Tax and other entities. DX 554;
Tr. I (Stapp) 76:22-25, 109:5-24. Quicken Loans relies
heavily on Intuit’s “Quicken” brand to attract its
customers. Tr. I (Stapp) 89:3-6.

127. As part of the Quicken.com website, Quicken Loans
benefits from any increase in the traffic to the
Quicken.com home page or any other component of the
Quicken.com website, including Turbo Tax. Tr. I (Stapp)
135:2-10. In recognition of this synergy, Quicken Loans has
conducted joint marketing campaigns with Turbo Tax and
other Intuit entities to drive traffic to the Quicken
website. DX 557; Tr. I (Stapp) 134:5-13.

128. Turbo Tax uses WhenU to advertise its products. DX
558-560; Tr. I (Stapp) 137:2-5; Tr. VII (Naider)
92:2-93:12. WhenU’s Turbo Tax advertising campaign has been
very effective in bringing visitors to the joint Turbo
Tax/Quicken website. DX 559. Accordingly, the Court finds
that Quicken Loans has benefitted from the use of WhenU
software by Turbo Tax to drive traffic to the Quicken
family of entities. Tr. I (Stapp) 135:11-15.

129. In contrast, the only harm alleged by Quicken Loans
stems from the possibility that a recipient of a SaveNow ad
may conclude the SaveNow advertiser has a superior offer
and thereby be “diverted” from the Quicken Loans webpage.
Quicken Loans has not demonstrated that even a single
customer, who would have otherwise purchased services from
Quicken Loans, did not do so because of “diversion” by a
WhenU advertisement. Indeed, Mr. Stapp admitted that only
3-5 percent of people who access the Quicken Loans site
even bother to fill out an application form, much less
procure services from Quicken Loans. Tr. I (Stapp) 84:12-16.

An Injunction Will Harm WhenU and the Public

130. Entry of a preliminary injunction would seriously harm
WhenU. A court opinion casting doubt on the legality of
WhenU’s core business model would result in the loss of
many of WhenU’s largest advertisers, costing WhenU millions
of dollars in lost revenue. Tr. VIII Page 38 (Naider)
36:23-37:9. Because of the long planning cycles involved in
the advertising business, this damage could not be recouped
even if WhenU eventually prevailed on the merits. Tr. VIII
(Naider) 37:10-19.

131. A number of advertisers, including American Express,
Bank of America and General Motors, have already
discontinued their campaigns with WhenU out of concern that
further use of WhenU’s advertising services will embroil
them in litigation. In the opinion of WhenU’s CEO, WhenU
would lose key advertisers should this Court issue a
preliminary injunction. DX 501, ¶ 58; Tr. VIII
(Naider) 36:25-37:9.

132. WhenU employs the services of 50 individuals to
maintain its operations, and relies on the efforts of some
60 or 70 independent sales representatives, many of whom
derive most of their revenue from sales generated on behalf
of When U. Tr. VII (Naider) 32:2-16. WhenU’s business
success depends heavily on attracting and recruiting
talented personnel. The effect of an injunction and the
associated financial losses would be to prevent WhenU from
recruiting talented people and to increase the likelihood
that present employees would leave the company. Tr. VIII
(Naider) 37:20-38:5.

133. The issuance of a preliminary injunction would have an
adverse effect on WhenU’s ability and incentive to improve
its contextual advertising technology to deliver more
specific real-time advertising. WhenU is a start-up
company, and its technology is constantly evolving. Tr. VII
(Naider) 28:18-19.

134. Harm to WhenU would harm the public as well. WhenU
benefits participating consumers by improving access to
relevant, useful and money-saving information about
products and services that interest them. WhenU’s
advertisements increase the choices available to consumers
and thereby promote competition. DX 501, ¶¶
35, 55.

135. A preliminary injunction could also chill the efforts
of other companies seeking to develop forms of “push
technology” — technology that delivers information
to the desktop Page 39 without need for consumers to make
an active request each time they see the information. Tr.
VII (Naider) 29:22-31:20.