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

AMERICA ONLINE, INC.
Plaintiff,

V.

OVER THE AIR EQUIPMENT, INC.
Defendant.

AMENDED PRELIMINARY INJUNCTION

The record before this Court contains evidence that customers of plaintiff's on-line Internet service have filed numerous complaints about receiving unsolicited e-mail advertising from defendant for various sexually explicit services such as interactive cyber-encounters with nude women. Plaintiff has responded to these complaints by asking defendant to stop sending unsolicited ads to its customers. There is evidence that defendant has refused to abide by plaintiff’s requests, has taken concrete steps to avoid plaintiff's efforts to block defendant’s e-mailings of these unsolicited advertisements, and has misappropriated plaintiff’s trademark and service marks on some of these mailings.

Plaintiff has presented evidence showing that when defendant needs these bulk e-mailings to AOL customers, it ties up AOL's computers. Under almost identical facts, such unpermitted use of another's property has been found to constitute an actionable trespass to chattel for which the First Amendment is no defense. CompuServe Incorporated v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997).

Based on the above findings, as well as for the additional reasons stated in open court, the Court concludes that the Blackwelder balance of harms, public interest and likelihood of success factors all tip strongly in plaintiff's favor and that only by an injunction will plaintiff be able to prevent defendant from trespassing on its property and misusing its trade and service marks. For these reasons, it is hereby

ORDERED that defendants Over the Air Equipment, Inc. and Joe Tajalle, and all persons acting in concert or participation with them, be and are enjoined from;

(1) sending or transmitting any unsolicited (which means not requested or asked for) electronic mail messages or other Internet communications to America Online, Inc. ("AOL") or its members without prior written authorization from AOL or the member to whom the message is being sent;

(2) sending or transmitting electronic mail or messages to AOL or its members bearing any false, fraudulent, anonymous, inactive, deceptive or invalid return information, or otherwise using any other artifice, scheme or method of transmission that would prevent the automatic return of undeliverable electronic mail to its original and true point of origin;

(3) causing their electronic mail, web sites or messages to bear any AOL registered trade or service mark or other symbol or representation falsely indicating that AOL has endorsed or approved defendants’ services, that AOL is affiliated with or connected in any way to defendants' businesses, or that any mail or message from defendants originated from, or was in any way transmitted through or by, AOL or any of its members; and

(4) obtaining and/or using membership with AOL to acquire or compile AOL member addresses for use in the transmission of unsolicited promotional messages to those AOL members.

Leonie M. Brinkema