UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

JUNO ONLINE SERVICES, L.P.,
Plaintiff,

- against -

SCOTT ALLEN EXPORT SALES, STRIPPERS, INC., PHOENIX INTERACTIVE, GLOBAL INFORMATION SERVICE, IMS, LARRY COHEN and DOES 1 through 10,
Defendants.

97 Civ.

COMPLAINT

Received

November 21 ,1997

Plaintiff Juno Online Services, L.P. ("Juno"), by its undersigned attorneys, McDermott, Will & Emery, for its Complaint alleges as follows upon knowledge with respect to itself and its own acts and upon information and belief as to all other matters:

NATURE OF THE CASE

1. Juno is an online service that allows more than 3,500,000 subscribers in the United States to use their personal computers to exchange electronic mail messages ("e-mail") over the Internet with anyone in the world who has an Internet e-mail address, completely free of charge. By this action, Juno seeks to stop unscrupulous persons and businesses from falsely and fraudulently attributing to a Juno e-mail account or to Juno itself the transmission of unsolicited commercial bulk e-mail (commonly known as "spam") actually sent by them through other e-mail providers.

2. Defendants' spam messages falsely designate Juno e-mail addresses as the origin of dubious commercial offers and financial schemes peddled on the Internet. This practice disrupts the ability of legitimate e-mail users to send and receive e-mail; causes thousands of angry recipients of the spam to direct their anger undeservedly at Juno; endangers Juno's continued access to critical destination and relay computers on the Internet whose administrators have threatened to block all incoming e-mail from any Juno account; and damages the value of Juno's business, trademarks and reputation by wrongly associating Juno with the universally reviled practice of spamming.

3. Spamming is not unique to Juno. It is a problem that plagues the Internet and affects every e-mail provider. For example, at hearings held recently by the Federal Trade Commission looking into the problem of spam e-mail, a lawyer for America Online, Inc. ("AOL"), the largest e-mail provider in the United States with over 10,000,000 subscribers, testified that as many as 30% of the 15 million Internet e-mail messages sent to AOL subscribers daily are spam.

4. Spam is akin to "junk mail" sent through the postal mail. However, purveyors of spare on the Internet often seek to hide their identity, falsify return e-mail addresses and make false or fraudulent claims in their spam advertisements. This is due to the low cost and easy commencement of a spamming operation. The FTC has stated that "regulators would go after commercial e-mail messages that display a false return address."

5. As more fully explained herein, Juno has implemented features to its service that prevent persons from using an actual Juno account to send spare or from transmitting spam through Juno's computer systems. However, it is not possible for Juno to prevent persons from using other e-mail services to send spam that appears to the recipient to have been sent from Juno or a Juno account. It is this practice that Juno seeks to stop by this action.

THE PARTIES

6. Juno is a Delaware limited partnership formed in 1995 and whose principal place of business is located at 120 West 45th Street, New York, New York 10036. Juno officially launched its free e-mail service to the public in April 1996. It has been an great success. Juno is currently the second largest dial-up consumer e-mail provider in the United States; approximately one in seven consumer e-mail accounts is a Juno account, with over 7,000 new accounts being created daily.

7. Defendant Scott Allen Export Sales ("Scott Allen Sales") is an entity whose principal place of business is located in Somerset, New Jersey. Defendant Larry Cohen ("Cohen") is a principal of Scott Allen Sales and resides in Somerset, New Jersey. Cohen and Scott Allen Sales are in the business of selling "mailing lists" of potential foreign business contacts over the Internet. Cohen and Scott Allen Sales use spam falsely attributable to Juno to solicit customers over the Internet.

8. Defendant Strippers, Inc. ("Strippers") is an entity whose principal place of business is located in Beverly Hills, California. Strippers has a Web site on the Internet that displays various pornographic material and -- for a fee (payable by providing Strippers with credit card information) -- will send viewers additional pornographic material through the postal mails. Strippers or persons acting on its behalf and behest have marketed the Strippers Web site by means of spam falsely attributable to Juno.

9. Defendant Phoenix Interactive ("Phoenix") is an entity whose principal place of business is located in Hermosa Beach, California. Phoenix is in the business of offering various materials and services needed by others interested in setting up their own Internet mass-marketing schemes. Phoenix uses spam falsely attributable to Juno to solicit customers over the Internet.

10. Defendant Global Information Services ("GIS') is an entity whose principal place of business is located in Clearwater, Florida. GIS is in the business of promoting an investment hotline on the Internet through the use of spam solicitations falsely attributable to Juno.

11. Defendant IMS ("IMS") is an entity who principal place of business is located in Knoxville, Tennessee. IMS is in the business of offering through the Internet what it purports to be a "credit card" and other materials that claim to help consumers obtain credit or repair poor credit ratings. For example, for $34.95, IMS says that it will send you a manual that "shows you how to open a brand new Social Security number which will allow you to open a brand new, fresh credit report. " IMS uses spam falsely attributable Juno to solicit customers over the Internet.

12. "Does" 1 through 10 are individuals, partnerships, corporations or other entities, the true names of which are not known to Plaintiff at this time. Plaintiff is informed and believes, and therefore alleges, that each of these Doe defendants is actively and regularly engaged in the tortious and wrongful activities alleged in this Complaint through one or more of the other Defendants named herein. Plaintiff will amend this Complaint to include the name or names of the Doe Defendants when the identities of such persons is ascertained.

JURISDICTION AND VENUE

13. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Section 1331, as this action arises under the laws of the United States, including 15 U.S.C. Section 1121(a) (Lanham Act) and 28 U.S.C. Section 1338 (federal trademark disputes and substantially related unfair competition claims), and pursuant to 28 U.S.C. Section 1367 and the doctrine of supplemental jurisdiction.

14. Venue is proper in this district in accordance with 28 U.S.C. Section 1391 because Juno's principal place of business is located in this district, and a substantial part of the events giving rise to the claims herein occurred in this jurisdiction. -

FACTS COMMON TO ALL CLAIMS

A. How the Internet Works.

15. The Internet is a giant "network of computers" that interconnects numerous smaller groups of linked computers. All the networks comprising the Internet are connected in a manner that permits any computer on the Internet to communicate with any other computer on the Internet.

16. An Internet Service Provider ("ISP") or online service is a commercial entity offering end-users telephone access (or higher speed connections) to a computer or computer network linked to the Internet, usually for a monthly fee. Most ISPs and online service providers ("E-mail Providers") provide e-mail to their customers.

17. E-mail consists of text messages sent electronically from one computer user to another over the Internet. Like postal mail, e-mail messages contain a destination address (identifying the intended recipient) and a return address (identifying the sender of the message and the E-mail Provider used by the sender to transmit the message). Normally, the return address of an e-mail message is automatically generated by the sender's computer and appears at the top of the e-mail message as part of its "header" information, which is viewable by the recipient.

18. It is possible for a knowledgeable e-mail sender to override his computer's automatic system and deliberately change the information contained in a message's header. E-mail senders may also purchase various software programs whose function is to alter e-mail header information for them. Changing information in the header of an e-mail message can be used to disguise the true identity and location of the sender so that the recipient would believe that a different party and/or E-mail Provider actually sent the message.

19. An e-mail address -- for example, "johnsmith@juno.com" -- consists of two components: the account name, and the domain name. The segment before the symbol "@" is the account name and specifies the individual sending or receiving the message. The segment after the symbol "@" is the Internet domain name, which indicates the E-mail Provider used by the individual to transmit and receive messages.

20. E-mail Providers maintain computer equipment called "servers" that manage network resources. Servers are often dedicated to a particular task. For instance, a "mail server" is a computer that is dedicated to handling e-mail storage and transmission.

21. Internet e-mail is not routed through a central control point or "post office." Rather, a message is "relayed" from computer to computer and can take many possible paths to its recipient. Unlike postal mail, e-mail generally is not "sealed" or secure, and can be accessed or viewed by any of the intermediate computers between the sender and the recipient. If the destination address is invalid (for instance, because it names a non-existent or deactivated account), the e-mail message is rerouted back to the sender's computer. This process is called being "bounced back."

B. How Juno's Service Works.

22. Juno operates an online service that allows its subscribers to exchange e-mail messages over the Internet with any other e-mail user in the world who has an Internet e-mail address, completely free of charge. Juno has offered this service under its well-known service mark, trade name and trademark, JUNO. To become a Juno subscriber, one merely installs a copy of Juno's proprietary software on one's personal computer and completes a demographic profile. Thereafter, subscribers are allowed to use the Juno service according to the Service Agreement ("Terms of Service") to which all new subscribers must agree at the time they open a new account.

23. Under the Terms of Service, Juno subscribers are specifically prohibited from using the service for commercial purposes, from sending obscene, harassing or pornographic messages, and from sending unsolicited commercial bulk e-mail or "spam. Juno will terminate the account of any Juno subscriber who violates the Terms of Service as soon as possible after learning of and verifying the violation.

24. Juno is designed to derive its revenues primarily from the display of interactive advertisements within its proprietary interface to its subscribers. Companies pay Juno a fee for displaying advertisements that subscribers see on their computer screens when they use Juno. The interactive features of these advertisements enable subscribers to request product information from an advertiser, to order goods and services electronically, and to communicate with an advertiser in a number of different other ways.

25. Each advertiser enters into an agreement with Juno that governs the terms and conditions under which it purchases advertising from Juno. This agreement contains provisions regulating the content of advertisements displayed on the Juno service. Juno advertisers include such well-known companies as American Express, Ford Motor Company, Citibank, BMW, Land's End, TIME Magazine and THE WALL

STREET JOURNAL.

26. Juno does not send spam, does not permit its members to send spam, and strongly condemns the practice of sending spam.

27. Juno applied for and received the Internet domain name "juno.com" in May 1995 from Network Solutions, Inc. ("NSI"), a private corporation that acts as registrar of domain names in the United States and operates under a grant of authority from the National Science Foundation. Juno is the sole and exclusive holder of the domain name "juno.com". Juno began using its mark and domain name in interstate commerce in July 1995.

28. Juno has invested significant resources to promote and protect its Juno marks and trade name in connection with the online services it provides. To date, Juno has invested more than $50 million in the development, marketing and distribution of its service.

C. Defendants' Spamming By Use of False Headers Attributable to Juno.

29. Beginning in or about February 1997 and continuing with increasing frequency thereafter, Internet e-mail users, including Juno subscribers, began receiving spam from Defendants. The headers of these e-mail messages falsely indicated that the messages had been sent from or through Juno's computers. Through the intentional falsification of the messages' electronic return addresses, the actual originators of the messages indicated that the messages had been sent by Juno subscribers when in fact they had not.

30. The dissemination of spam fraudulently attributed to Juno was frequently done using fictitious Juno e-mail addresses (or in some cases, real Juno e-mail addresses belonging to innocent third parties) as the return addresses listed in the e-mail headers of spam. Frequently, the spam bore a return address in which the account name was simply a set of numerals, which appeared to have been automatically generated by a computer program and appended in front of the domain name "juno.com". All such return addresses can be instantly identified as fictitious because it is impossible to create an actual Juno e-mail account that starts with a numeral.

31. It is not uncommon for a single individual or enterprise to send out a spam message simultaneously to as many as two million recipients. This is possible through the use of mailing lists purchased from vendors who use specialized computer software either to "trawl" the Internet and collect as many actual, publicly posted e-mail addresses as possible or else to generate probable e-mail addresses at random (e.g., adam@juno.com, bob@juno.com, chris@juno.com, etc.).

32. The cost to the sender of transmitting one e-mail message to two million recipients is the same as the cost of transmitting the same message to just one recipient -- virtually nothing. This fact has made spamming on the Internet an irresistibly tempting marketing method for desperate, poorly funded and disreputable would-be entrepreneurs. The further opportunity for virtual anonymity in sending spam with forged headers has led to the frequent use of this technique by swindlers, charlatans and purveyors of sleazy merchandise.

33. Spammers are generally unconcerned about the number of messages they send, the high incidence of invalid e-mail addresses in their mailing lists or the animosity they engender in those people they do reach. Because they have altered the header information in their messages to indicate that their spam originated from an account not belonging to them or that does not exist, spammers never receive the thousands of messages "bounced back" from invalid addresses or the thousands of angry replies from recipients who were subjected to an unsolicited, unwanted, and often offensive "junk" e-mail message.

34. Spammers typically request in the text of their solicitations that persons interested in purchasing the goods, services or opportunities being offered reply to the seller by telephone, fax or postal mail, or by visiting the spammer's Internet Web site. In this way, the spammer avoids having to deal with all the undeliverable messages that get "bounced back" and all the complaints, while still collecting his sales.

35. Juno has in place several proprietary systems designed to prevent the use of the Juno service or a real Juno account for the transmission of spam. Currently, for instance, it is not possible for a Juno subscriber to send an e-mail message to more than 50 different recipients at one time. Moreover, Juno has installed "firewalls" and "filters" in its servers that eliminate the ability of subscribers to E-mail Providers other than Juno to access or relay messages through Juno's mail servers. These protections are similar to those commonly installed by other large E-mail Providers, such as America Online, CompuServe and Prodigy.

36. Nevertheless, despite Juno's costly and extensive efforts to eliminate the sending of spam by its own subscribers or through its own computers, no technical solution Juno can deploy is capable of preventing someone from forging a Juno e-mail address in spam sent through the computers of another E-mail Provider. Persons such as the Defendants have misused the Juno mark and domain name to send spam messages through the computers of E-mail Providers with which Juno has no affiliation, and have implicated Juno in their conduct, leaving Juno -- innocent of any responsibility and powerless to prevent the conduct -- to bear the costs of their actions.

(i) Scott Allen Export Sales.

37. On or about October 21, 1997 through about November 8, 1997, a single spam solicitation was sent to approximately 20,000 to 30,000 different Internet e-mail addresses at no fewer than 51 E-mail Providers. This spam originated from a subscriber of an E-mail Provider that contracted for Internet connectivity through UUNET Technologies, Inc. ("UUNET"), a provider of access to the Internet based in Fairfax, Virginia.

38. This spam was an unsolicited commercial advertisement for mailing lists being sold by Scott Allen Sales. These mailing lists purportedly contained names and addresses of foreign business contacts in the export industry. The spam indicated that each mailing list of 250 to 400 names was available to be purchased for $72.00. The recipients of this spam were instructed to call a telephone number provided in the text of the spam to purchase the lists. The spam claimed that Scott Allen Sales' computers could not release the mailing lists "unless tied to a phone call reference typed in by our sales people . . . part of our security system."

39. This spam message was configured to falsely identify its sender as a Juno account. The spam bore a header or "postmark" containing "juno.com" as the sender's domain name and thus falsely indicated that Juno's service was used to send out the spam. (See Exhibit A attached hereto).

40. Thus, while the spammer sent out his electronic advertising message from an e-mail account that connected to the Internet via UUNET, he falsely designated several real Juno e-mail addresses as the point of origin. The e-mail addresses chosen for this purpose included "sales4324@juno.comn, "sales777@juno.com" and "salesl 1 l 1juno.com."

41. Based on the member profile information provided by the person or persons who created these Juno accounts, Juno believes that the accounts were created by someone affiliated with Scott Allen Sales. Juno believes that the e-mail addresses for these accounts were created and falsely designated as the accounts that sent the spam in order to serve as the never-to-be-opened repository for all the complaints and bounce backed messages.

42. In addition to disguising the E-mail Provider from which the spam actually originated, Scott Allen Sales also routed each message through at least six different ISPs before sending it on to the recipients. Juno believes that defendant relayed these messages in an effort to further disguise the sender's actual e-mail address and to further confuse recipients seeking to lodge a complaint.

43. Defendant's spam resulted in a tremendous drain on Juno's resources. Juno received more than 2,000 complaints from Internet users who received Defendant's spam. Juno personnel spent three weeks sorting and responding to the complaints misdirected at Juno.

44. Juno also received more than 50 complaints from System Administrators of Internet domains whose subscribers and clients received the Scott Allen Sales spam, or whose computers were used to "relay" spam to other Internet domains. Many of the Systems Administrators contacted Juno because they believed that the messages had originated at Juno and that Juno condoned or even possibly was responsible for Defendant's activity. Five Internet domains threatened to block all Juno e-mail from reaching their subscribers in the future. This would have had a devastating impact on Juno and its subscribers, who would have been prevented from communicating with millions of other email users.

45. Juno's business, valuable trademarks and associated goodwill are damaged by their wrongful association with spam and spammers such as Scott Allen Sales.

46. Unless enjoined, Scott Allen Sales and Cohen will continue to send out spam disguised to appear as if it is originating from a Juno account or being transmitting through Juno's Internet domain.

(ii) Strippers, Inc.

47. On or about November 7, 1997 through November 10, 1997, a single spam solicitation was sent to approximately 10,000 different Internet e-mail addresses at no fewer than 36 different E-mail Providers. This spam originated from a subscriber of an Email Provider that contracted for Internet connectivity through UUNET.

48. It is believed that the author of the spam was Strippers or some person or entity affiliated with Strippers.

49. This spam was an unsolicited commercial advertisement for a site on the World Wide Web: http://www.strippersinc.com. This Web site displays pornographic pictures and, for a fee, offers to send more such pictures through the postal mails.

50. Each spam message was configured to falsely identify its sender as a Juno account. The spam bore a header containing "juno.com" as the sender's domain name and falsely indicated that Juno's service was used to send out the spam. (See Exhibit B attached hereto).

51. Thus, while the spammer sent out his electronic advertising message from an e-mail account that connected to the Internet via UUNET, he falsely designated many Juno e-mail addresses as the point of origin. Juno believes that the e-mail addresses used in this manner were randomly generated by computer software used by Strippers or a person or entity affiliated with Strippers.

52. The majority of the Juno e-mail addresses used were fictitious. At least one of the Juno e-mail addresses used, however, was in existence at the time. The legitimate holder of this account appears to have no affiliation with Strippers, but received many complaints from persons who received the spam with his e-mail address forged into the header and wrongly believed that he was the sender. Juno believes that the accounts falsely designated as the originating accounts of the spam message were selected by the spammer for the purpose of misdirecting the complaints and bounced back messages.

53. In addition to disguising the identity of the account that sent the spam, Strippers also routed the spam through as many as 18 different ISPs before sending it to the recipients. Juno believes that defendant relayed these messages in an effort to further disguise the sender's actual e-mail address and to further confuse recipients seeking to lodge a complaint.

54. Juno received approximately 500 complaints from Internet users who received this spam. Juno personnel spent three days sorting and responding to the misdirected complaints.

55. Juno also received five complaints from System Administrators of Internet domains whose subscribers and clients received the Strippers spam, or whose computers were used to "relay" spam to other Internet domains. Many of these Systems Administrators contacted Juno because they believed that the messages had originated at Juno and that Juno condoned this activity.

56. Juno's business, valuable trademarks and associated goodwill are damaged by their wrongful association with spam and spammers such as Strippers.

57. Unless enjoined, Strippers will continue to send out spam disguised to appear that it is originating from a Juno account or being transmitting through the use of Juno's Internet domain.

(iii) Phoenix Interactive.

58. On or about July 21, 1997 through about August 15, 1997 a single spam solicitation was sent to approximately 10,000 different Internet e-mail addresses at no fewer than 31 different E-mail Providers. This spam appears to have originated from an account at an E-mail Provider called Global (l-global.com) located in Fort Wayne, Indiana.

59. It is believed that the author of this spam was Phoenix or some person or entity affiliated with Phoenix.

60. This spam was an unsolicited commercial advertisement offering "How To" manuals, mailing lists and other materials for setting up an Internet mass-marketing scheme. For example, Phoenix offered to sell 1,000,000 e-mail addresses for $399.95, or to send its clients' spam message to 1,000,000 e-mail addresses for $659.95. The advertisement stated: "Even if you receive 1/10 of 1% response for mailing 1,000,000 e-mail addresses you would receive 1000 replies!!!! How much money would you make?"

61. This spam message was configured to falsely identify its sender as a Juno account. The spam bore headers indicating that the sender's e-mail address was "salacious1@juno.comn. (See Exhibit C attached hereto).

62. Thus, while the spammer sent out his electronic advertising messages from a Global Internet account, he falsely designated a Juno account as the actual sender of the spam. Juno believes that the "salacious1@juno.com" account was created and falsely designated as the originating account of the spam in order to misdirect the complaints and bounced back messages.

63. Juno received approximately 1200 complaints from Internet users who received these messages. Juno personnel spent five days sorting and responding to the misdirected complaints.

64. Juno also received ten complaints from System Administrators of Internet domains whose subscribers and clients received the Phoenix spam. Many of the Systems Administrators contacted Juno because they believed that the messages had originated at Juno and that Juno condoned this activity.

65. Juno's business, valuable trademarks and associated goodwill are damaged by their wrongful association with spam and spammers such as Phoenix.

66. Unless enjoined, Phoenix will continue to send out spam disguised to appear that it is originating from a Juno account or being transmitting through the use of Juno's Internet domain.

(iv) Global Information Systems.

67. On or about November 6, 1997 a single spam solicitation was sent to approximately 20,000 different Internet e-mail addresses at no fewer than 55 different E-mail Providers. This spam originated from a subscriber with an account at AT&T WorldNet Service ("ATT.NET"), an Internet access provider located in Parsippany, New Jersey.

68. It is believed that the author of this spam was GIS or some person or entity affiliated with GIS.

69. This spam was an unsolicited commercial advertisement for a site on the World Wide Web: http://www.invhot.com. This Web site offers research on Real Estate Investment Trusts and opportunities to win free shares of stock.

70. This spam message was configured to falsely identify its sender as a Juno account (moneynet908776354@juno.com). (See Exhibit D attached hereto).

71. Thus, while this spammer sent out his electronic advertising messages from an ATT.NET account, he falsely designated a Juno account as the point of origin. The Juno account used by this spammer is fictitious. Juno believes that this account was falsely designated as the sender of the spam in order to misdirect the undesired complaints and bounced back messages.

72. In addition to disguising the identity of the account that sent the spam, GIS also routed the spam through at least 10 different ISPs before sending it to the recipients. Juno believes that defendant relayed these messages to further disguise the sender's actual e-mail address and to further misdirect complaints and bounced back messages.

73. Juno received approximately 600 complaints from Internet users who received this spam. Juno personnel spent three days sorting and responding to the misdirected complaints.

74. Juno also received four complaints from System Administrators of Internet domains whose subscribers and clients received the GIS spam, or whose computers were used to "relay" spam to other Internet domains. Most of these Systems Administrators contacted Juno because they believed that the messages had originated at Juno and that Juno condoned this activity.

75. Juno's business, valuable trademarks and associated goodwill are damaged by their wrongful association with spam and spammers such as GIS.

76. Unless enjoined, GIS will continue to send out spam disguised to appear that it is originating from a Juno account or being transmitting through the use of Juno's Internet domain.

(v) IMS.

77. On or about October 9, 1997 through about October 28, 1997, a single spam solicitation was sent to approximately 30,000 different Internet e-mail addresses at no fewer than 22 different E-mail Providers. This spam originated from an e-mail account at IBM Internet Connection ("IBM.NET"), an E-Mail Provider located in Armonk, New York.

78. It is believed that the author of this spam was IMS or some person or entity affiliated with IMS.

79. This spam was an unsolicited commercial advertisement for products that claim to aid individuals with bad credit to ameliorate their credit reports and to receive additional credit. The spam message advertises the "WorldCard Instant Credit" credit card, as well as manuals that instruct persons on how to repair their bad credit, and how to thwart collection agencies. The spam message provides a street address and fax number to which persons may send their order for the advertised products.

80. This spam message was configured to falsely identify its sender as a Juno account. The spam bore a header containing "juno.com" as the sender's domain name and falsely indicated that Juno's service was used to send out the spam. (See Exhibit E attached hereto).

81. Thus, while the spammer sent out his electronic advertising message from an IBM.NET account, he falsely designating several Juno e-mail addresses as the point of origin. Juno believes that the accounts designated in the spam messages, all composed entirely of numeric characters, were randomly generated. None of the specified accounts were existent Juno accounts, as no Juno account name may begin with a numeric character.

82. Juno believes that the Juno e-mail addresses used in this spam were included in the header in order to misdirect undesired complaints and responses from recipients of the spam.

83. In addition to disguising the identity of the account that sent the spam, IMS also routed the spam through at least nine different ISPs before sending it to the recipients. Juno believes that the sender relayed these messages in an effort to further disguise the sender's actual e-mail address and to misdirect the resulting complaints and bounced back messages.

84. Juno received approximately 1200 complaints from Internet users who received this spam. This activity interfered with the processing of legitimate complaints and with the other responsibilities of Juno's Postmaster Department.

85. Juno's business, valuable trademarks and associated goodwill are damaged by their wrongful association with spam and spammers such as IMS.

86. Unless enjoined, IMS will continue to send out spam disguised to appear that it is originating from a Juno account or being transmitting through the use of Juno's Internet domain.

D. The Substantial and Irreparable Damages Sustained by Juno Occasioned by the Spam Erroneously Attributed to It.

87. Because of its ability to reach literally millions of Internet e-mail users quickly and with minimal cost compared to traditional junk mail, spam has become a popular vehicle for the dissemination of unsolicited advertising and promotional materials.

88. Spam, although not legally prohibited, is deeply detested by the vast majority of e-mail users. Unlike traditional junk mail which may be easily discarded by the recipient, spam places a significant drain on the resources of the recipient and the recipient's E-mail Provider in that (i) an E-mail Provider's server must route the unwanted mail to the intended recipient and, if the spam is undeliverable, return the same to the sender, thereby sapping valuable computer resources and (ii) unlike postal mail, the cost of whose delivery is borne by the sender, the cost of delivering e-mail is borne by the recipient, who often pays a fee to his E-mail Provider (and sometimes also a telephone carrier) for each unit of time he spends receiving ("downloading") e-mail.

89. By falsifying or "forging" the return address and domain of their spam, Defendants are able to disguise the fact that their e-mail is spam and to avoid many of the email filters that have been installed by ISPs to block known senders of spam.

90. The mass distribution of spam by Defendants has severely and adversely affected Juno, has damaged Juno's reputation and business and has caused Juno irreparable harm.

91. The fraudulent use of the Juno name and trademark is particularly egregious, and the damages Juno has sustained are particularly severe, where the spam is advertising pornographic materials or financial schemes promising immediate and substantial profits, or where the spam contains gross and insupportable statements or claims tantamount to false advertising.

FIRST COUNT

False Designation of Origin and False Description (15 U.S.C. Section 1125)

92. Plaintiff Juno repeats and realleges the allegations contained in paragraphs 1 through 91 as if fully set forth herein.

93. Defendants have engaged in acts of unfair competition through the use of false designations of origin in their spam messages. Specifically, Defendants have falsely and without authorization used Juno's domain name in the electronic return addresses of their spam, and have falsely represented that Juno is the originator of such spam.

94. Defendants' dissemination of spam falsely bearing Juno's domain name was used in connection with the sale of goods and services in interstate commerce and violates 15 U.S.C. Section 1125(a).

95. Defendants' conduct is likely to create confusion among the members of the public by inducing them to believe, contrary to fact, that Juno approves or condones Defendants' use of Juno's domain name or Defendants' dissemination of spam.

96. Defendants' false designations of origin have caused Juno damages in the form of lost goodwill and damage to business reputation in an amount to be proved at trial. Because Defendants' actions are extraordinary and egregious, such damages should be trebled.

97. Defendants' acts of unfair competition and false designations of origin continue to harm Juno's name and business reputation, and continue to cause confusion among members of the public. These damages are irreparable and cannot be ascertained or remedied with an award of money damages and Juno therefore lacks an adequate remedy at law.

98. Juno is entitled to preliminary and permanent injunctive relief.

SECOND COUNT

Misappropriation of Name & Identity

99. Plaintiff Juno repeats and realleges the allegations contained in paragraphs 1 through 98 as if fully set forth herein.

100. Defendants knowingly used Juno's name and identity by placing false return addresses on the spam disseminated by Defendants by using Juno's name and domain name in the header and elsewhere in the spam, making it appear that the spam originated from Juno.

101. The misappropriation of Juno's name and domain was used in commercial advertising traceable to Defendants and was to Defendants' commercial advantage because undeliverable spam was misdirected and sent to Juno, rather than to Defendants.

102. The misappropriation of Juno's name was also to the commercial advantage of Defendants because Juno, rather than Defendants, received the complaints and hostility associated with the spam.

103. The misappropriation of Juno's name, identity and domain name was not authorized and was done without Juno's consent.

104. Juno was injured as a result of the misappropriation. Defendants were able to shift the cost of bounced back spam and to misdirect user complaints and hostility away from themselves and onto Juno.

105. Juno has been immediately and irreparably harmed by the misappropriation of its name, identity and domain name and has no adequate remedy at law.

106. The misappropriation of Juno's name by defendants is continuing and these actions cannot be redressed at trial. As a result, the value of Juno's business, reputation and substantial goodwill are being irreparably damaged. Because these damages cannot be readily ascertained, plaintiff lacks an adequate remedy at law.

THIRD COUNT

Misrepresentation

107. Plaintiff Juno repeats and realleges the allegations contained in paragraph 1 through 106 as if fully set forth herein.

108. Juno has made a substantial investment of time, effort and money in the development of its business.

109. As a result of Defendants' misrepresentation of Juno's name, identity and domain name, Juno has suffered damages, and Defendants have earned profits in an amount to be proven at trial.

110. Defendants have acted with fraud, oppression and malice, and Juno is therefore entitled to punitive damages.

111. Defendants' acts of misrepresentation continue to damage Juno and Defendants continue to earn profits from this misrepresentation. As a result, the value of Juno's business, reputation and substantial goodwill are being irreparably damaged. Because these damages cannot be readily ascertained, plaintiff lacks an adequate remedy at law.

FOURTH COUNT

Common Law Fraud

112. Plaintiff Juno repeats and realleges the allegations contained in paragraphs 1 through 111 as if fully set forth herein.

113. Defendants' conduct was deliberate and intentional. Defendants' attempt to conceal the identity and e-mail address of the sender of the spam was intended to deceive Juno and the recipients of the spam of the true origin of the spam.

114. Juno has been damaged by Defendants' fraud through the loss of members and revenue, and damage to its business name and reputation.

FIFTH COUNT

Unjust Enrichment

115. Plaintiff Juno repeats and realleges the allegations contained in paragraphs 1 through 114 as if fully set forth herein.

116. Defendants have derived considerable economic benefit from their conduct of wrongfully implying that the spam originated from Juno or a Juno account.

117. Defendants have also derived considerable economic benefit from their conduct by shifting the cost of undeliverable and bounced back spam to Juno, and the costs associated with responding to numerous customer complaints about spam.

118. Juno has not been compensated in any way by Defendants for the costs and damages associated with their spam.

119. Juno has been damaged by Defendants' conduct and is entitled to an

award of damages in an amount to be determined at trial.

WHEREFORE, plaintiff Juno Online Services, L.P. seeks judgment in its favor and against defendants as follows:

A. Preliminary and permanent injunctive relief enjoining Defendants and each of their respective agents, employees, affiliates, representatives or control persons directly or indirectly from (i) sending or causing any e-mail to be sent over the Internet that contains or uses Juno's name, domain name, trademarks, trade names or service marks, in whole or in part, in any fashion whatsoever and (ii) attempting to send any e-mail through Juno's e-mail server;

B. Awarding damages in an amount to be proven at trial;

C. Awarding Juno punitive damages assessed against each of the defendants in the amount of $1,000,000.00;

D. Awarding Juno its costs and reasonable attorney's fees in prosecuting this action; and

E. Granting such other relief as the Court may deem to be just and proper.

Dated: New York, New York

November 21, 1997

McDERMOTT, WILL & EMERY

By:

John D. Lovi (JL-5928)
Rockefeller Plaza
New York, New York 10020
(212) 547-5400
Attorneys for Plaintiff Juno Online Services, L.P.