UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

AMERICA ONLINE, INC. Plaintiff,

v.

CYBER PROMOTIONS, INC., Defendant.

FIRST AMENDED COMPLAINT FOR SERVICE MARK AND TRADE NAME INFRINGEMENT, SERVICE MARK AND TRADE NAME DILUTION, FALSE DESIGNATION OR ORIGIN, FALSE ADVERTISING, UNFAIR COMPETITION, MISAPPROPRIATION, CONVERSION, UNJUST ENRICHMENT AND VIOLATIONS OF THE VIRGINIA CONSUMER PROTECTION ACT, THE ELECTRONIC COMMUNICATIONS PRIVACY ACT, THE COMPUTER FRAUD AND ABUSE ACT, AND THE VIRGINIA COMPUTER CRIMES ACT

JURISDICTION

1. This is an action for service mark and trade name infringement, service mark and trade name dilution, false designation of origin, false advertising violation of the Virginia Consumer Protection Act, other acts of unfair competition, misappropriation, conversion and unjust enrichment; and for violations of the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, and the Virginia Computer Crimes Act arising under the statutes of the United States (Trademark Act of 1946, 15 U.S.C. Sections 1051 et. seq., 18 U.S.C. Section 1030, and 18 U.S.C. Sections 2701 et. seq.), the statutory law of the State of Virginia (Va. Code Sections 18.2-152.2 et seq., and Sections 59.1-196 et seq.), and the common law.

2. This court has jurisdiction over the subject matter under Section 39 of the Trademark Act of 1946, 15 U.S.C. Section 1121; the Judicial Code, 28 U.S.C. Sections 1331, 1332, 1338, and 1367; and the doctrine of supplemental jurisdiction. The amount in controversy exceeds the sum or value of $50,000, exclusive of interest or costs, and is between citizens of different states. Venue is proper in this judicial district pursuant to 28 U.S.C. Section 1391(b) in that a substantial part of the events or omissions giving rise to the claims occurred in and a substantial part of property that is the subject of the action is situated in this judicial district.

THE PARTIES

3. Plaintiff America Online, Inc. ("AOL"), is a corporation organized and existing under the laws of the State of Delaware with its principal place of business at 8619 Westwood Center Drive, Vienna, Virginia 22181.

4. Upon information and belief, Defendant Cyber Promotions, Inc. ("Cyber") is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal place of business at 1255 Passmore Street, 1st Floor, Philadelphia, Pennsylvania 19111. Cyber is doing business in and has caused tortious injury in the Commonwealth of Virginia within this judicial district.

THE INTERNET

5. The acts complained of herein were committed by Cyber through use of the Internet. Often called the "Information Superhighway", the Internet is a complex communications network that links private and public computer networks, systems and individuals. It consists of computers and computer databases connected primarily through telephone lines, fiber optic cables and high speed dedicated leased lines. Some of the components of the Internet are owned by governmental organizations. However, AOL is a proprietary, content based online service. It owns computers and other devices which enable its customers to obtain various services including Internet access services.

6. In many ways, the Internet resembles our highway transportation system. The phone lines are similar to highways over which goods are transferred from one location to another and the computer domain sites such as those operated by AOL, are similar to privately owned warehouses in which goods are stored and from which they are disseminated to various destinations.

7. The Internet has become one of the most significant technological creations of this century occupying a position that is potentially more important than telephones or televisions among communications media. Once connected to the Internet, users can obtain vast amounts of digitized data, including texts, audio, graphics and videos from sources ranging from the archives of large government and academic institutions to any of the Internet's millions of individual users.

8. Among the economic benefits provided by the Internet are new techniques for marketing and selling goods and services. Many responsible businesses such as AOL have invested vast sums of money in the computers and communications systems needed to facilities such transactions. AOL and others seek to recoup their investment by charging fees to those who wish to gain access to their systems. Unfortunately, the Internet also has provided irresistible opportunities for unscrupulous individuals and corporations, such as Cyber and its founder. Instead of investing in its own equipment, Cyber has used the systems of others to gain access to the Internet and to use it as a tool to perpetrate fraud, to misappropriate intellectual property, to engage in unfair competition, to invade the privacy of others, and to reap where it has not sown.

FACTS PERTAINING TO CYBER'S ACTS OF UNFAIR COMPETITION

9. AOL is the owner of numerous trademarks, service marks, and trade names, including the well known trade names and service marks AMERICA ONLINE, AOL AND "aol.com". The name and mark AOL is often used as a short hand expression for the mark AMERICA ONLINE. Similarly, the trade name, mark and domain name "aol.com" is widely recognized as a short hand expression for AMERICA ONLINE.

10. Long prior to the acts complained of herein, and at least as early as 1989, AOL adopted and began using the names and marks AMERICA ONLINE, and "aol.com" in connection with a variety of online computer services. Since that time, AOL has used these names and marks continuously and extensively in interstate commerce and in the Commonwealth of Virginia, in connection with the advertising and sale of online and Internet access services.

11. AOL's exclusive right to use the service marks and trade names AMERICA ONLINE and AOL is evidenced by the fact that the United States Patent and Trademark Office has issued federal registrations for these marks: Registration No. 1,618,148, issued October 16, 1990, and Registration No. 1,977,731 issued June 4, 1996, respectively. Both of these registrations are in full force and effect, unrevoked, and uncancelled and the 1990 registration is incontestable. In addition, the registrations provide prima facie and conclusive evidence of the validity and subsistence of the marks; AOL's ownership of and exclusive right to use the marks in commerce without restriction or limitation; and constructive notice of AOL's ownership pursuant to Sections 7, 22 and 33 of the Trademark Act of 1946, 15 U.S.C. Sections 1057, 1072 and 1115. Copies of the registrations are attached hereto as Exhibit A.

12. AOL has invested substantial sums of money in developing and marketing the world's largest and most successful computer online network, which provides online access to a wide variety of information and services. AOL customers may use their personal computers to gain access to numerous publications including current magazines, newspapers, and reference works. In addition, AOL's online service contains relating to such topics as entertainment, news, sports, finance, computers, weather, travel, education, games, and software. Using their AOL accounts, subscribers may make purchases of a wide variety of products and services, secure travel reservations, place classified ads, meet new people, and communicate by electronic mail ("e-mail") with AOL subscribers and other persons with Internet addresses residing throughout the world.

13. At present there are no more than 6,000,000 subscribers to AOL's online service. each of which is authorized to use the AOL system for sending and receiving e-mail so long as they abide by the Terms of Service and Rules of the Road promulgated by AOL.

14. The names and marks AMERICA ONLINE, AOL and "aol.com" have been and continue to be widely publicized through substantial advertising in the State of Virginia and throughout the United States. Many millions of dollars have been spent in connection with such advertising which has been disseminated through network and cable television programs, radio broadcasts, and in print media including newspapers and periodicals. Sales of services under the names and marks AMERICA ONLINE, AOL and "aol.com" have amounted to many millions of dollars. As a result, the general public has come to associate these names and marks with the services of a high and uniform quality.

15. Because of said substantial advertising expenditures and sales, AOL's names and marks have become well-known and famous among members of the purchasing public as distinctive indicators of the services offered by AOL.

16. Notwithstanding AOL's prior use of and rights in its names and marks AMERICA ONLINE, AOL and "aol.com", Cyber has begun advertising and selling electronic advertising services through the Internet, within this judicial district and in interstate commerce under the names and marks AOL and "aol.com". In promoting its services, Cyber has falsely represented that it is affiliated with, sponsored by, approved by or endorsed by AOL. Among other things Cyber has transmitted messages containing claims such as "Our brand new ... AOL CLASSIFIED CO-OP SERVICE!" These advertisements have been circulated by Cyber with a deliberate intent to deceive customers into believing that Cyber's services are sponsored, approved, endorsed or affiliated with AOL. Cyber has also included in its advertisements fraudulent Internet addresses containing AOL's well known service mark and domain name "aol.com". A sample advertisement used by Cyber is attached hereto as Exhibit B.

17. Cyber's use of names and marks similar to those owned by AOL, for services identical to those offered by AOL or its related companies, is likely to cause and has caused confusion among prospective purchasers.

18. Upon learning of Cyber's use of a confusingly similar name and mark, AOL contacted Cyber and demanded that it discontinue such use.

19. Cyber refused to comply with AOL's demand and continued to offer and sell electronic advertising services under the names and marks AOL and "aol.com" . Thus, Cyber traded on AOL's goodwill in a manner calculated to deceive and cause confusion among prospective purchasers.

20. Cyber has engaged in said infringing use despite having full knowledge of AOL's prior rights in its name and mark. Thus, Cyber has acted unlawfully, with a willful and deliberate intent to cause confusion among the purchasing public and to injure AOL.

FACTS PERTAINING TO CYBER`S ACTS OF MISAPPROPRIATION, CONVERSION AND UNJUST ENRICHMENT, AND VIOLATIONS OF THE ELECTRONIC PRIVACY ACT, THE COMPUTER FRAUD AND ABUSE ACT, AND THE VIRGINIA COMPUTER CRIMES ACT

21. AOL's e-mail system was created solely for the benefit of AOL customers who pay prescribed fees and who agree to adhere to AOL's Terms of Service. The e-mail system is operated through dedicated computers known as servers which store and route e-mail messages for AOL's customers. All AOL customers are given a unique AOL address so that they can send and receive on their personal computers both AOL e-mail and Internet e-mail. These addresses consist of a name selected by the customer and AOL's service mark and domain designation "aol.com", (e.g., "VWXYZol.com"). Only AOL customers are allowed to use the "aol.com" mark and domain name as a part of their address.

22. Because AOL provides access to the Internet, AOL customers may communicate by e-mail with any other person having an Internet address. However, persons using the Internet do not have access to AOL's proprietary online system unless they first agree to establish an AOL account and abide by AOL's Terms of Service.

23. Any mail that is sent through the Internet, or through AOL's e-mail system, to an AOL address will be received by AOL's mail server. When AOL's mail server receives such e-mail, it automatically attempts to route it to the AOL subscriber for whom it is intended. If e-mail bears an incorrect AOL address (because no such addressee ever existed, or because the addressee is no longer an AOL subscriber), the mail is bounced back to the sender's return address. If the sender's address is not valid, the mail is routed to a server known as the "postmaster workstation". This server performs a wide variety of functions vital to the efficient operation of the AOL system. Among other things, it enables the AOL system to interface with the Internet so e-mail can be sent and received.

24. The AOL mail server and postmaster workstation have a finite capacity designed to accommodate the demands imposed by AOL's customers. They are not designed to accommodate, and they are vulnerable to disruption by, indiscriminate mass mailings from irresponsible Interet pirates such as Cyber.

25. AOL's Terms of Service and Rules of the Road, and the Internet protocols and courses of dealing which are incorporated therein, impose restrictions on the manner in which AOL customers and others may use AOL's e-mail system. Among the types of conduct prohibited by the Terms of Service (and the acceptable use policies of the Internet) is the sending of unsolicited commercial advertisements. This electronic junk mail is often referred to pejoratively as "spam". It prohibited because it constitutes an invasion of privacy. In addition, it impairs the efficiency and viability of both the Internet as a whole and online services, such as AOL, by overloading communication conduits.

26. Cyber has converted AOL's computer equipment for its own purposes by using it without authorization to send its commercial messages. Cyber holds itself out as being able to disseminate advertisements for a fee to hundreds of thousands of Internet users. Cyber charges disseminate advertisements for a fee to hundreds of thousands of Internet users. Cyber charges advertisers a fee and then includes messages concerning their products and services in indiscriminate mass mailings sent to the e-mail addresses which Cyber has compiled.

27. On information and belief, most of Cyber's mass mailings go to AOL customers. These advertisements are voluminous and they eat up valuable online time for which customers are billed. Many of AOL's customers have complained to AOL about the junk e-mail sent by Cyber and have asked AOL to take action to cause Cyber to desist from its activities.

28. Some of the advertisements sent to AOL customers b Cyber are adult oriented and a highly salacious nature. These materials are offensive to many AOL customers particularly those with children.

29. Cyber never requested or obtained any authorization form AOL to engage in this conduct not has it compensated AOL in any manner for the use of AOL's equipment to route the millions of unsolicited messages which Cyber has sent.

30. AOL would never have granted approval, even if Cyber had requested it, since Cyber's conduct violates AOL's Rules of the Road which are incorporated in the Terms of Service.

31. Cyber and or its President Sanford Wallace formerly were subscribers of AOL who agreed to abide by AOL's Terms of Service. However, their right to use the AOL system was terminated because of flagrant and intentional violations of the Terms of Service. Following termination, Cyber has continued to gain access to the AOL system by engaging the services of other Internet Service Providers ("ISPs"). Most such providers have policies which prohibited the mailing of "spam" and Cyber has attempted to conceal its activities from them.

32. Although Cyber and its owner are fully aware of the damage to others caused by the mass mailing of "spam", Cyber has recklessly continued to engage in the dissemination of such electronic mailings. Indeed it has boasted that it sends over 700,000 messages per day.

33. Among the Internet addresses of persons to whom Cyber directs its unwanted solicitations are those of at least 650,000 AOL customers. Intent only on reaping the maximum commercial advantage from its activities, Cyber has made no effort to determine the validity of the addresses. As a result a substantial quantity are invalid. Ordinarily, such mailings would be directed back to the ISP whose system was used by Cyber. To avoid detection, however, Cyber uses forged return mailing addresses or domain names on its mailings. By Continually changing its mailing address to avoid detection, Cyber has attempted to evade AOL's security systems which are designed to keep communication lines and server space open for AOL's customers. On numerous occasions, Cyber has managed to gain unauthorized access to AOL's system to obtain addresses of AOL subscribers and to bombard them with unwanted mailings.

34. The forged return e-mail addresses used by Cyber have contained AOL's mark and domain name "aol.com". Because Cyber has used such return addresses on its mailings, and because many of its mailings have been directed to invalid addresses, mass quantities of its communications have been dumped into an automatically stored by AOL's computer equipment. Cyber's conduct has damaged AOL and its e-mail system by overloading this equipment and by causing it to become incapacitated on multiple occasions. AOL has incurred substantial expenses in repairing the damage caused by Cyber's malicious conduct. The correctly addressed mail sent by Cyber also has overloaded and jeopardized the efficient operation of AOL's e-mail system. Although AOL's customers pay for the e-mail service offered by AOL, Cyber has paid nothing for the use of AOL's system to disseminate its unsolicited commercial messages.

35. Upon the learning of the volume of junk e-mail that Cyber was sending many of its ISPs have terminated Cyber's account and have precluded it from obtaining access to their systems. On information and belief, however, Cyber has found new ISPs through which it continues sending its e-mail solicitations through AOL's system to AOL customers.

36. AOL has received numerous complaints from customers who have received Cyber's mailings. Many of these customers have been deceived by Cyber's use of infringing marks and forged return addresses and they have been led to believe that AOL is the source of the mailings or that AOL has approved them. This confusion has damaged AOL's reputation and goodwill and its relationship with its customers.

COUNT I 

SERVICE MARK INFRINGEMENT UNDER THE STATUTORY LAW OF THE UNITED STATES

37. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in acts of service mark infringement within the meaning of Section 32(1) of the Trademark Act of 1946, 15 U.S.C. Section 1114(1). Paragraphs 1 through 36 of this complaint are incorporated by reference as a part of this count.

38. Cyber has used and is using the names and marks AOL and "aol.com" in connection with the advertising and selling of electronic advertising services in such a manner as to create a likelihood of confusion among prospective purchasers, thereby inducing purchasers and other to believe, contrary to fact, that the goods or services sold by Cyber are rendered, sponsored, or otherwise approved by, or connected with AOL, which acts of Cyber have damages impaired and diluted that part of AOL's goodwill symbolized by the well known names and marks AMERICA ONLINE, AOL and "aol.com" to AOL's immediate and irreparable damage.

39. Cyber's use of the names and marks AOL and "aol.com" in the manner alleged constitutes service mark infringement within the meaning of 15 U.S.C. Section 1114(1).

40. Cyber had actual knowledge of AOL's rights in the service marks AMERICA ONLINE and AOL when it began using the name and marks complained of herein. Thus, Cyber has willfully and deliberately infringed AOL's rights.

41. Cyber's acts of infringement have caused AOL irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue these acts of infringement to AOL's immediate and irreparable damage.

COUNT II 

SERVICE MARK DILUTION UNDER THE STATUTORY LAWS OF THE UNITED STATES

42. As a separate cause of action an ground for relief, AOL alleges that Cyber has and is engaged in acts constituting service mark dilution in violation of Section 43(c) of the Trademark Act of 1946, 15 U.S.C. Section 1125(c). Paragraphs 1 through 41 of this complaint are incorporated by reference as a part of this count.

43. Cyber has made commercial use of the names and marks AOL and "aol.com" with the willful intent to trade on AOL's reputation or to cause dilution of the famous marks AMERICA ONLINE, AOL, and "aol.com".

44. Cyber's use of the names and marks AOL and "aol.com" began long after AOL's marks had become well known and famous.

45. Cyber's use of the names and marks AOL and "aol.com" causes dilution of the distinctive quality of AOL's famous marks AMERICA ONLINE, AOL"aol.com".

46. Cyber's use of the names and marks AOL and "aol.com" lessens the capacity of AOL's famous marks AMERICA ONLINE, AOL and "aol.com" to identify and distinguish AOL's goods and services.

47. Cyber's activities complained of herein constitute service mark dilution within the meaning of Section 43(c) of the Trademark Act of 1946, 15 U.S.C. Sections 1125(c).

48. Cyber's conduct has caused AOL irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue to willfully dilute AOL's famous marks to the immediate and irreparable damage of AOL.

COUNT III 

UNFAIR COMPETITION THROUGH FALSE DESIGNATION OF ORIGIN AND FALSE ADVERTISING IN VIOLATION OF THE STATUTORY LAW OF THE UNITED STATES

49. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in acts of unfair competition through the use of false designations of origin and false advertising in violation of Section 43(a) of the Trademark Act of 1946, 15 U.S.C. Section 1125(a). Paragraphs 1 through 48 of this complaint are incorporated by reference as part of this count.

50. Cyber has used and is using the names and marks AOL and "aol.com", and Cyber has made and is making false express or implied representations that its services originate with or are endorsed by AOL, in connection with the advertising and selling of electronic advertising services in such a manner as to create a likelihood of confusion among prospective purchasers, thereby inducing purchasers and others to believe, contrary to fact, that the goods or services sold by Cyber are rendered, sponsored, or otherwise approved by, or connected with AOL, which acts of Cyber have damaged, impaired and diluted that part of AOL's goodwill symbolized by its names and marks to AOL's immediate and irreparable damage.

51. Cyber's use of trade names and marks that are confusingly similar to those used by AOL in connection with the advertising and sale of its goods or services constitutes use of a false designation of origin, and Cyber's express or implied representations that its services originate with or are endorsed by AOL constitute a use of false descriptions or representations of fact, within the meaning of Section 43(a) of the Trademark Act of 1946, 15 U.S.C. Section 1125(a).

52. Cyber's use of trade names and marks confusingly similar to those of AOL constitutes unfair competition entitling AOL to remedies afforded pursuant to Section 43(a) of the Trademark Act of 1946, 15 U.S.C. Section 1125(a).

53. Cyber's acts of false designation of origin and false advertising have caused AOL irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue the acts of unfair competition complained of herein to AOL's immediate and irreparable damage.

COUNT IV 

FRAUDULENT ACTS OR PRACTICES IN VIOLATION OF THE CONSUMER PROTECTION ACT OF THE COMMONWEALTH OF VIRGINIA

54. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in fraudulent acts or practices in violation of the Consumer Protection Act of the Commonwealth of Virginia, Va. Code Sections 59.1-1-198. Paragraphs 1 through 53 of this complaint are incorporated by reference as a part of this count.

55. Cyber has used and is using the names and marks AOL and "aol.com" in connection with the advertising and selling of electronic advertising services in such a manner as to misrepresent its goods or services as those of AOL; to misrepresent the source, sponsorship, approval, or certification of its goods or services; to misrepresent itself as having an affiliation, connection or association with AOL; to misrepresent the geographic origin of its goods or services; to misrepresent that its goods or services have certain quantities, characteristics, ingredients, uses or benefits; to misrepresent that its goods or services are of a particular standard, quality, grade, style or model; and to use other deceptions, fraud, false pretenses, false promises or misrepresentations in connection with consumer transactions, which acts of Cyber have damaged, impaired and diluted that part of AOL's goodwill symbolized by the service marks AMERICA ONLINEAOL, and "aol.com" to AOL's immediate and irreparable damage.

56. Cyber's use of the names and marks AOL and "aol.com" in the manner alleged constitutes deceptive trade practices of a type proscribed by Va. Code Sections 59.1-1-98.

57. Cyber had actual knowledge of AOL's rights in the service mark AOL at the time it decided to use the names and marks complained of herein. Thus, Cyber willfully and deliberately infringed AOL's rights in the mark AOL.

58. Cyber's unfair business practices are of a recurring nature and harmful to the consumers and the public at large.

59. Cyber's unfair and deceptive business practices have caused AOL irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue these deliberate acts of infringement and deceit and will continue misleading consumers and to AOL's immediate and irreparable damage.

COUNT V 

UNFAIR COMPETITION UNDER THE COMMON LAW OF THE STATE OF VIRGINIA

60. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in acts constituting unfair competition under the common law of the State of Virginia. Paragraphs 1 through 59 of this complaint are incorporated by reference as a part of this count. 62. The aforesaid acts of Cyber constitute unfair competition under the common law of Virginia.

63. Cyber's acts of unfair competition have caused AOL irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue said acts of unfair competition to AOL's immediate and irreparable damage.

COUNT VI 

SERVICE MARK INFRINGEMENT UNDER THE COMMON LAW OF THE STATE OF VIRGINIA

64. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in acts of service mark infringement in violation of the common law of the State of Virginia. Paragraphs 1 through 63 of this complaint are incorporated be reference as a part of this count.

65. Cyber has used and is using the names and marks AOL and "aol.com" in connection with the advertising and selling of electronic advertising services in such a manner as to create a likelihood of confusion among prospective purchasers, thereby purchasers and other to believe, contrary to fact, that the goods and services sold by Cyber are rendered, sponsored, or otherwise approved by, or connection with AOL, which acts of Cyber have damages, impaired and diluted that part of AOL's goodwill symbolized by the marks owned by AOL, to AOL's immediate and irreparable damage.

66. The nature, probable tendency and effect of Cyber's use of confusingly similar names and marks in the manner alleged is to enable Cyber to deceive the public by passing off its goods and services a being rendered, sponsored, or otherwise approved by or connected with AOL.

67. Cyber's use of names and marks confusingly similar to those used by AOL in connection with the advertising and selling of electronic advertising services, is likely to cause confusion, mistake or deception as to the source or origin of Cyber's goods or services and constitutes infringement of AOL's service marks under the common law of the State of Virginia.

68. Cyber's acts of infringement have caused AOL irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue these acts of infringement thereby deceiving the public and causing. AOL immediate and irreparable damage.

COUNT VII 

TRADE NAME INFRINGEMENT UNDER THE COMMON LAW OF THE STATE OF VIRGINIA

69. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in acts of trade name infringement under the common law of the State of Virginia. Paragraphs 1 through 68 of this complaint are incorporated by reference as a part of this count.

70. Cyber has used and is using the names and marks AOL and "aol.com" in connection with the advertising and selling of electronic advertising services in such a manner as to create a likelihood of confusion among prospective purchasers, thereby inducing purchasers and others to believe, contrary to fact, that the goods or services sold by Cyber are rendered, sponsored, or otherwise approved by, or connected with AOL, which acts have damaged, impaired and diluted that part of AOL's goodwill symbolized by its trade names AMERICA ONLINE, AOL and "aol.com", to AOL's immediate and irreparable damage.

71. The nature, probable tendency and effect of Cyber's use of confusingly similar names and marks in the manner alleged is to enable Cyber to deceive the public by passing off its goods or services as being rendered, sponsored, or otherwise approved by or connected with AOL.

72. Cyber's use of names and marks similar to the trade names AMERICA ONLINE, AOL and "aol.com" in the advertising and sale of goods or services, is likely to cause confusion, mistake or deception as to the source or origin of Cyber's goods or services. Said conduct constitutes infringement of AOL's trade names under the common law of the State of Virginia.

73. Cyber's acts of trade names infringement have caused AOL irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue these acts of infringement deceiving the public and causing AOL immediate and irreparable damage.

COUNT VIII 

MISAPPROPRIATION IN VIOLATION OF THE COMMON LAW OF VIRGINIA

74. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in acts of common law misappropriation. Paragraphs 1 through 73 of this complaint are incorporated by reference as a part of this count.

75. Cyber without authorization or at the very least exceeding any authorization has used AOL's proprietary e-mail system to transmit unsolicited promotional and advertising material to AOL's customers.

76. Cyber's unauthorized transmission of unsolicited material, from which Cyber profits to the detriment of AOL, constitute, the unfair and unlawful misappropriation of extremely valuable commercial property owned by AOL.

77. Cyber's parasitic use of AOL's system has seriously taxed the storage and transmission capacity of AOL's mail server and has forced AOL to devote significant resources to manage the unauthorized, unsolicited and disruptive message traffic generated by Cyber.

78. By clogging AOL's mail server with its unsolicited promotional message traffic, Cyber is directly competing with AOL and it is interfering with the use of AOL's proprietary e-mail system by legitimate users.

79. Cyber's unlawful and inequitable activities damage and dilute the commercial value of the e-mail services currently offered by AOL to its customers, and inequitably misappropriate the equipment, skill, expenditures and labors of AOL for Cyber's commercial advantage.

80. the foregoing activities of Cyber constitute misappropriation of AOL's commercial property, in violation of the common law of the State of Virginia.

81. Cyber's misappropriation of AOL's commercial property has caused and continues to cause AOL to suffer irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue these acts of misappropriation thereby causing AOL immediate and irreparable damage.

COUNT IX 

CONVERSION IN VIOLATION OF THE COMMON LAW OF VIRGINIA

82. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in acts of conversion in violation of the common law of the State of Virginia. Paragraphs 1 through 81 of this complaint are incorporated by reference as a part of this count.

83. The computers, computer networks and computer services that compromise AOL's e-mail system are the personal property of AOL.

84. Cyber without authorization, or at the very least exceeding any authorization, has intentionally used AOL's e-mail system for Cyber's own commercial benefit. Due to the volume of its unsolicited messages Cyber has used AOL's e-mail system in such a manner and extent as to exercise dominion over said property or, in the alternative, in such a manner and extent as to deprive AOL and its customers of the legitimate use of this proprietary and commercially valuable system.

85. The foregoing activities of Cyber constitute conversion of AOL's property in violation of the common law of the State of Virginia.

86. Cyber's conversion of AOL's property has caused and continues to cause AOL to suffer irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue these acts of conversion thereby causing AOL immediate irreparable damage.

COUNT X 

UNJUST ENRICHMENT ENTITLING AOL TO QUASI CONTRACT RELIEF UNDER THE COMMON LAW OF VIRGINIA

87. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in acts of unjust enrichment entitling AOL to Quasi Contract relief under the common law of the State of Virginia. Paragraphs 1 through 86 of this complaint are incorporated by reference as a part of this count.

88. Cyber has derived economic benefit from the dissemination of unsolicited commercial messages through unauthorized use of AOL's proprietary e-mail.

89. Cyber has paid no compensation to AOL for the dissemination of Cyber's unsolicited e-mail to AOL customers.

90. As a result of Cyber's conduct, Cyber has been unjustly enriched.

91. Cyber's unjust enrichment creates a contract implied by law between Cyber and AOL, entitling AOL to equitable relief, money judgment and other restitution for the losses sustained by AOL and the benefits conferred upon Cyber through its unauthorized use of AOL's property and services.

92. Cyber's unjust enrichment through the unauthorized use of AOL's property and services has caused and continues to cause AOL to suffer irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue deriving unjust enrichment thereby causing AOL immediate and irreparable damage.

COUNT XI 

VIOLATION OF THE ELECTRONIC COMMUNICATIONS PRIVACY ACT

93. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in acts constituting a violation of the Electronic Communications Act, 18 U.S.C. Section 2701 et seq. Paragraph 1 through 92 of this complaint are incorporated by reference as a part of this count.

94. AOL owns computer system through which electronic communication services are provided to customers for a fee.

95. Upon information and belief, Cyber through means of a computer used in interstate commerce, intentionally obtained access to AOL's facilities by transmitting into AOL's system excessive amounts of unsolicited e-mail directed to AOL's customers at their respective AOL addresses. Cyber's access to AOL's system occurred without AOL's authorization. Cyber's acts complained of herein were done knowingly and with the specific intent of obtaining access so that Defendant could distribute for profit, on an unsolicited basis, the promotional material of its clients.

96. Cyber's intentional and unauthorized access to AOL's system has caused damage to the computers, computer systems, networks, information, data and programs of AOL's computer servers and such damage, moreover, has been so extensive in nature as to prevent the authorized access to AOL's system by AOL's own customers and personnel thereby causing injury to AOL.

97. Defendant's acts complained of herein violate Chapter 121 of The Electronic Communications Privacy Act, 18 U.S.C. Section 2701 et seq.

98. Cyber's violations of the Electronic Communications Privacy Act have caused AOL irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue these violations to AOL's immediate and irreparable damage.

COUNT XI 

VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT

99. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is engaged in acts constituting a violation of the Computer Fraud and Abuse Act, 18 U.S.C. Section 1030 et seq. Paragraph 1 through 95 of this complaint are incorporated by reference as a part of this count.

100. AOL maintains one or more computers as defined in Section 1030(e) of the Computer Fraud and Abuse Act through which e-mail transmissions are received, stored and disseminated for the benefit of AOL customers ("AOL's computer facilities").

101. Defendant, without authorizations, or at the very least exceeding any authorization, knowingly and willfully caused, through the means of a computer used in interstate commerce, the transmission of one or more programs, information, codes or commands to AOL's computer facilities, with the intent, and at the very least, with reckless disregard of a substantial and unjustified risk, that its transmission would damage, or cause damage to, a computer, computer system, network, information, data or program of AOL's computer facilities.

102. Defendant's willful transmission of one or more programs, information, codes or commands related to the unsolicited e-mail transmission to AOL's computer facilities, in fact caused damage to the computer, computer systems, networks, information, data and programs which comprise said facilities and furthermore caused the withholding and denial of use of the computers, computer services, systems, networks information, data and programs of AOL's computer facilities, thereby causing injury to AOL.

103. The foregoing acts and conduct of the Defendant have caused, and if not enjoined will continue to cause, loss or damages to one or more other persons of value aggregating $1,000 more during any one year period.

104. Defendant's acts complained of herein violate the Computer Fraud and Abuse Act, 18 U.S.C. 1030 et seq.

105. Cyber's violations of the Computer Fraud and Abuse Act have caused AOL irreparable injury, loss of reputation and pecuniary damages. Unless enjoyed by this court, Cyber will continue these violations to AOL's immediate and irreparable damage.

COUNT XIII 

VIOLATIONS OF THE VIRGINIA COMPUTER CRIMES ACT

106. As a separate cuase of action and ground for relief, AOL alleges that Cyber has and is engaged in acts constituting violations of the Virginia Computer Crimes Act, Va. Code Section 18.2-152.2 et seq. Paragraphs 1 through 102 of this complaint are incorporated by reference as a part of this count.

107. AOL maintains one or more computers, as that term is defined in Va. Code of Section 18.2-152.2, through which electronic mailings are received, stored and disseminated ("AOL's computers"). AOL's computers, computer networks and computer services are the "property" of AOL as that term is defined in Va. Code Section 18.2-152.2.

108. Defendant, without authorization or at the very least exceeding any authorization, knowingly, intentionally and willfully caused, through the use of a computer or computer network, the malfunction of "AOL's computers?"

109. Defendant, without authorization or at the very least exceeding any authorization, intentionally through the use of a computer or computer network obtained property or services by false pretenses.

110. Defendant, without authorization or at the very least exceeding any authorization, intentionally through the use of a computer or computer network used AOL's computers, computer networks, or computer services in a such a manner and extent as to exercise dominion over such property or, in the alternative, in such a manner and extent as to deprive AOL of the use of this property thereby in each instance converting AOL's property for Defendant's own commercial use.

111. The foregoing acts caused damages to AOL's computer systems and furthermore caused the withholding and denial of use of the computers, computer services, systems, networks information, data and programs of AOL's computer facilities, thereby causing injury to AOL.

112. Defendant's conduct complained of herein above violates the Virginia Computer Crimes Act, Va. Code Section 18.2-152.3 and Section 18.2-152.4.

113. Cyber's violations of the Virginia Computer Crimes Act have caused AOL irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue these violations to AOL's immediate and irreparable damage.

WHEREFORE, AOL prays for judgment against Cyber as follows:

(1) Pursuant to 15 U.S.C. Section 1116, and the law of the state of Virginia, that Cyber and each of its agents, servants, employees, attorneys, assigns, and all others in privity or acting in concert with them be permanently enjoined from:

(a) Using the names and marks AMERICA ONLINE, AOL, and "aol.com", or any name or mark confusingly similar to AOL's names and marks in the advertising or sale of any goods or services;

(b) Using in any manner any service mark, trademark, trade name, trade dress, words, numbers, abbreviations, designs, colors, arrangements, collocations, or any combinations thereof which would imitate, resemble or suggest AOL's well known service marks and trade names;

(c) Otherwise infringing AOL's service marks and trade names;

(d) Unfairly competing with AOL, diluting the distinctiveness of AOL's well known service marks and trade names, and otherwise injuring AOL's business reputation in any manner;

(e) Publishing or sending any e-mail or other messages using the names or marks AMERICA ONLINE, AOL, "AOL.COM" or any other name or mark confusingly similar to AOL's names or marks.

(2) Pursuant to 15 U.S.C. Section 1118 and the law of the state of Virginia, Cyber be directed to deliver up for destruction all software, advertisements, labels, signs, prints, packages, wrappers, receptacles and all other materials in its possession or under its control that resemble or bear the names or marks AMERICA ONLINE, AOL, or "aol.com" or any other name or mark containing the term AOL or any other reproduction, counterfeit, copy or colorable imitation of AOL's service marks and trade names and all plates, molds, matrices, and other means of making or duplicating the same.

(3) Pursuant to 15 U.S.C. Section 1117 and the law of the state of Virginia, Cyber, account and pay to AOL damages in an amount sufficient to fairly compensate AOL for the injury it has sustained, plus all profits which are attributable to the infringing sale of goods or services under the names and marks complained of herein, and further that the amount of the monetary award granted herein be trebled in view of the willful and deliberate nature of Cyber's unlawful conduct.

(4) Punitive damages in an amount sufficient to deter Cyber from engaging in its unlawful conduct in the future.

(5) Pursuant to 15 U.S.C. Section 1117, the law of the state of Virginia, Cyber be ordered to pay to AOL the costs of this action and AOL's attorney fees.

(6) Pursuant to 18 U.S.C. Section 2707, 18 U.S.C. Section 1030(g), Va. Code Ann. Section 18.2-152.12, and the common law of Virginia, that Cyber and each of its agents, servants, employees, attorneys, assigns, and all others in privity or acting in concert with them be permanently enjoined from.

(a) Sending or transmitting any e-mail or other messages using the names or marks AMERICA ONLINE, AOL, "AOL.COM" or any other name or mark confusingly similar to AOL's names or marks.

(b) Sending or transmitting any e-mail to AOL or AOL's customers using a false, fraudulent, anonymous, inactive, deceptive or invalid return e-mail address, or using any other artifice, scheme or method of transmission that would prevent the automatic return to Cyber of undeliverable e-mail sent to, or through, AOL's e-mail system.

(c) Sending or transmitting any e-mail to AOL's customers advertising the commercial availability or quality of any property, goods or services without the prior invitation of AOL or AOL's customers.

(d) Sending or transmitting any other unsolicited commercial e-mail or message through AOL's e-mail system without the prior invitation of AOL or any of AOL's customers.

(7) Pursuant to 18 U.S.C. Section 2702, 18 U.S.C. Section 1030(g), Va. Code Ann. Section 18.2-152.12, and the common law of the state of Virginia, that Cyber account and pay to AOL damages in an amount sufficient to fairly compensate AOL for the injury it has sustained as a result of Cyber's unlawful activity plus all profits which are attributable to Cyber's violations of the statutes and other laws referenced in this complaint, and reasonable attorney's fees and other litigation costs reasonably incurred.

(8) AOL be granted such other, further, different or additional relief as this court deems equitable and proper.

Dated: ______________

AMERICA ONLINE, INC.