 Upon appeal, the United States Court of Appeals for the Second Circuit held that WhenU's actions did not amount to the "use" that the Lanham Act () requires in order to constitute trademark infringement.The appeal court reversed the preliminary injunction and ordered the dismissal of all claims made by 1-800 CONTACTS that were based upon trademark infringement, leaving the claims based upon unfair competition and copyright infringement.The district court had found that 1-800 CONTACTS was unlikely to prevail in its copyright infringement claims, finding that "the conduct neither violated [the] plaintiff's right to display its copyrighted website, nor its right to create derivative works therefrom".