CIVIL ACTION NO. 97-1547-A 

AMERICA ONLINE’S COMPLAINT FOR VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT; THE LANHAM ACT; THE VIRGINIA COMPUTER CRIMES ACT; AND OTHER ACTS IN VIOLATION OF THE COMMON LAW OF THE COMMONWEALTH OF VIRGINIA

NATURE OF PLAINTIFF’S CLAIMS

1.Despite repeated demands to cease and desist, the above-named Defendants have misappropriated the proprietary computers and computer networks of America Online, Inc. ("AOL") to transmit to AOL members millions of unsolicited Internet electronic mail messages advertising Defendants’ "cyber-stripper" services. In order to escape detection, and to impair AOL’s efforts to prevent these unauthorized e-mail transmissions through technical means, Defendants have engaged in a variety of deceptive practices, including the falsification of Internet e-mail transmission data. Defendants’ deceptive practices have damaged -- and continue each day to damage -- AOL’s business reputation and goodwill by creating the erroneous impression among AOL members that AOL condones, or is affiliated with, Defendants’ unsolicited e-mail practices and with the adult entertainment services that Defendants purvey. This injury has been compounded by Defendants’ misappropriation and infringement of AOL’s registered trade and service marks in conjunction with their mass e-mailings to AOL. In addition, Defendants’ practices have caused serious injury to AOL by impairing the functioning of AOL’s e-mail systems: AOL has been forced to devote substantial computer and staff resources to processing Defendants’ unauthorized e-mail, and the processing of Defendants’ unauthorized and falsified mass mailings has impaired the delivery of legitimate Internet e-mail sent to AOL members. Defendants have violated the Computer Fraud and Abuse Act (18 U.S.C. § 1030), the Lanham Act (15 U.S.C. §§ 1051 et seq.), and the Virginia Computer Crimes Act (Va. Code Ann. §§ 18.2-152.2 et seq.), and have converted and trespassed upon AOL’s chattels in violation of Virginia common law. By this action, AOL seeks compensatory and punitive damages and an injunction to prevent further unlawful conduct.

THE PARTIES

2.AOL is a corporation organized and existing under the laws of the State of Delaware with its principal place of business at 22000 AOL Way, Dulles, Virginia 20166. AOL provides a proprietary, content-based online service. AOL owns and maintains computers and other devices that enable its customers ("AOL members") to obtain various services, including access to the Internet. AOL’s central computer systems, which include specialized computers (called "servers") that process electronic messages ("e-mail"), are based in the Commonwealth of Virginia. E-mail sent to and from AOL members is processed through and stored on these computers. AOL’s computers in Virginia likewise provide the functionality for, and maintain the content of, the AOL service provided throughout the United States and abroad. AOL has registered the domain name "aol.com" with the InterNIC. This domain name is used extensively in commerce and is recognized worldwide as a source identifier of AOL’s online services.

3.On information and belief, Defendant Over the Air Equipment, Inc. ("OAE") is a corporation organized and existing under the laws of the State of Nevada with its principal place of business at 2054 East Desert Inn Road, Suites C & D, Las Vegas, Nevada 89109.

4.On information and belief, OAE operates and transacts business, or has operated and transacted business, from numerous InterNIC-registered Internet domains, including the following: "babeview.com"; "damsel.com"; "overtheair.com"; "luv2cu.com"; "xtcvdo.com"; "fleshfactory.com"; "fourskin.com"; "hot4us.com"; "domehard.com"; "sexy-vision.com"; "takeher.com"; "lewd4u.com"; "hotgrrls.com"; "xtc4u2c.com"; "trousersnake.com"; "gettinoff.com"; "vdocam.com"; "strokin.com"; "spoogin.com"; "babetalk.com"; "babespank.com"; "babechat.com"; "tastyho.com"; "cybergirlfriends.com"; "lonelygirls.com"; and "exoticbabes4u.com."

5.On information and belief, Defendant Joe Tajalle (a.k.a. "Joe Taj", "Joe Arcan", "Joe Trousersnake", "Joe Friend", "Joe Spank", "Joe Spooge", "Joe Tasty", "John Stroke") is a citizen of Nevada who operates and transacts business, or has operated and transacted business, from numerous InterNIC-registered Internet domains, including the following: "babeview.com"; "damsel.com"; "overtheair.com"; "luv2cu.com"; "xtcvdo.com"; "hotgrrls.com"; "xtc4u2c.com"; "trousersnake.com"; "gettinoff.com"; "vdocam.com"; "strokin.com"; "babespank.com"; "tastyho.com"; "cybergirlfriends.com"; and "exoticbabes4u.com."

6.On information and belief, Defendants OAE and Tajalle jointly operate and transact business from the aforementioned domains, acting in concert with one another and/or with agents unknown to AOL.

JURISDICTION AND VENUE

7.This action arises out of, among other things, Defendants’ violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the Lanham Act, 15 U.S.C. §§ 1051 et seq. The Court has subject matter jurisdiction of this action based on 15 U.S.C. § 1121(a) and 28 U.S.C. §§ 1331, 1332 and 1338, and has supplemental jurisdiction of plaintiff AOL’s state law claims based on 28 U.S.C. § 1367. The amount in controversy exceeds the sum or value of $75,000, exclusive of interest or costs.

8.Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b), and this Court has personal jurisdiction over Defendants, because Defendants have caused tortious injury in this Eastern District of Virginia, and because a substantial part of the events or omissions giving rise to AOL’s claims, together with a substantial part of the property that is the subject of AOL’s claims, are situated in this judicial district.

THE INTERNET

9.Defendants committed the acts complained of herein through their use of the electronic messaging capabilities of the Internet. The Internet is a complex "network of networks" which interconnects innumerable smaller groups of linked computers. All of 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.

10.The Internet makes it possible for a user rapidly to exchange electronic messages—e-mail—with other Internet users in the United States and abroad. E-mail can be sent virtually instantaneously from one individual to another, or from an individual user to a large group of addresses. The Internet’s e-mail functionality makes it possible for a sender easily to transmit tens of thousands of copies of a single message.

11.The InterNIC, a consortium run by the National Science Foundation, is responsible for assigning the unique addresses used by computers to communicate through the Internet. These unique addresses are referred to as Internet Protocol ("IP") addresses. Like the unique telephone numbers used by individuals and businesses for their telephone communications, IP addresses ensure orderly communications between computer networks on the Internet. An IP address is comprised of 4 sets of up to 3 numbers in the following format: 123.123.123.123.

12.The InterNIC also assigns "domain" names to individuals, businesses, and organizations using the Internet. Domain names function as convenient shorthand for users of the Internet, giving Internet users the option of using readily understandable proper names to identify themselves and their communications, rather than cumbersome twelve-digit IP addresses. Businesses, for example, are typically assigned by the InterNIC domain names with the ".com" designation (e.g., the domain names "babeview.com" and "overtheair.com" used by Defendants), while educational and governmental organizations usually are assigned ".edu" and ".gov" domain names (e.g., "topuniversity.edu" and "federalagency.gov"). Because each domain name corresponds to a unique IP address, the InterNIC performs the important task of maintaining the directories that allow computers connected to the Internet to find the appropriate IP address for a particular domain name requested by a user.

13.E-mail addresses used on the Internet incorporate domain names. An e-mail address consists of a name corresponding to the individual user’s account name and a name indicating the "domain" within which the user’s account is located (e.g. "jdoe@company.com"), separated by the "@" symbol.

14.The World Wide Web (the "Web") allows Internet users to visit "Web sites" using a communications interface—a "Web browser"—that enables the user to view the text and/or pictorial contents of each Web site. A significant feature contributing to the Web’s popularity among Internet users is its "linking" capability. Messages may be embedded with "hypertext links" to Web sites, and Web sites may in turn be embedded with hypertext links to other Web sites, making it possible for an Internet user quickly to move to and from Web sites of interest through the single click of a computer mouse.

15.Web sites bear unique domain names that enable Internet users to direct their browsers to the computer hosting the desired Web site. For example, an Internet user wishing to visit the Web site operated by Defendants at the "babeview.com" or "damsel.com" domains would enter the Web addresses for those domains—"http://www.babeview.com" or "http://www.damsel.com."

16.To the extent that individuals and companies who register domains with the InterNIC fail to provide truthful information regarding the identities and location of the persons responsible for these domains’ activities, and also falsify e-mail transmission data in order to conceal the domains and IP addresses of the individuals actually responsible for the transmission of unsolicited commercial e-mail, it becomes extremely difficult for other Internet users to prevent, or to seek redress for, unauthorized and unlawful mailings.

DEFENDANTS’ DECEPTIVE BULK E-MAILING PRACTICES

17.Defendants have misappropriated vast mailing lists of AOL members’ e-mail addresses and repeatedly transmitted—at virtually no cost to Defendants—batches of tens of thousands of copies of various messages across the Internet through AOL’s computers and computer networks to AOL’s members.

18.Defendants’ promotional e-mails have generally been drafted in the guise of a brief letter, purportedly from a female author, that invites the recipient to "see me in person" or to have "a good time" by visiting certain Web sites maintained by Defendants, such as "http://www.babeview.com" (IP address 206.149.148.20); "http://www.damsel.com" (IP address 206.149.148.52); "http://www.sexy-vision.com" (IP address 207.202.61.2); and "http://www.luv2cu.com" (IP address 206.149.148.113). An example of a typical message is attached at Exhibit A hereto.

19.In recent months, the promotional messages that Defendants have directed to AOL members have incorporated hypertext links that make it possible for the AOL member recipient to visit Defendants’ Web sites with a single click of a computer mouse. The e-mail that contains such a hypertext link functions not only as an advertisement, but also as a direct point of access to the adult entertainment services offered by Defendants at their Web sites.

20.At the Web sites referenced in their e-mail solicitations, Defendants make available for downloading software that purports to enable Internet users with credit cards to view "live" adult entertainment. For the provision of these services, Defendants charge up to $19.95 for a one-time "membership" fee, and up to $9.95 per minute for a five minute minimum.

21.The commercial solicitations contained in Defendants’ unsolicited e-mail usually contain a "warning" message that purports to allow the recipient to prevent future solicitations by sending reply e-mails to other domain names operated by Defendants—such as "delete@mail.babeview.com" and "delete@mail.exoticbabes4u.com." Defendants, however, have not accepted, and thus have not honored, the requests of AOL member recipients for removal from these lists. On information and belief, Defendants continue to transmit e-mail solicitations to recipients who have requested removal from their mailing lists.

22.The transmission of unsolicited bulk e-mail messages is a practice widely condemned in the Internet community, and receipt of unsolicited, unwanted e-mail  has resulted in voluminous complaints from AOL members. To address AOL members’ concerns, AOL developed a blocking tool called "PreferredMail" that is designed to enable a member to block electronic mail sent from particular domains from being received in the AOL member’s "mail box." AOL maintains a list in PreferredMail that consists of domains and/or IP addresses that have been the subject of complaints by AOL members and whose operators have been unwilling to cooperate in preventing the transmission of unsolicited bulk e-mail. An AOL member can elect to "turn on" or "turn off" the PreferredMail tool, and thereby is able to choose whether to receive unsolicited bulk e-mail from the domains or IP addresses contained on the PreferredMail list.

23.In order to impede AOL’s efforts to use technical means to prevent the transmission to AOL and its members of Defendants’ bulk mailings, and to conceal the true identities of the senders, Defendants have employed a constantly shifting variety of domains and IP addresses from which to transmit their promotional messages.

24.To further conceal their activities, Defendants knowingly and deliberately falsify the Internet "header" information on their e-mail messages. "Headers" are standardized features of Internet e-mail that are supposed to provide recipients with information regarding a message’s path across the Internet. The proper functioning of the Internet’s e-mail system depends on the use of truthful "header" information.

25.Defendants have engaged in a pattern and practice of altering various elements in the "header" information contained in batches of unsolicited commercial e-mail transmitted to AOL and its members. Defendants have persistently listed false "from" addresses on their e-mails’ "headers," and/or forged other information relating to the point of origin and route of transmission of their e-mail, including the domain from which the mail was sent. Defendants also have used randomized information in the "from" portion of their e-mail "headers" to prevent AOL from discerning the quantity of unauthorized e-mail that Defendants are sending through AOL’s computers and computer networks.

26.In recent weeks, the "header" information on Defendants’ e-mail has falsely indicated that their messages originate from accounts at "aol.com." (e.g., the fictitious return address "84489642@aol.com" used in a message sent by Defendants on September 13, 1997, attached at Exhibit B hereto). The use of AOL’s domain name--which incorporates and bears AOL’s registered trademark and service mark "aol"--in these fraudulent return addresses falsely implies that AOL is the point of origin of Defendants’ unsolicited, unwanted messages.

27.By persistently misrepresenting information in the "headers" of their unsolicited bulk e-mails Defendants have knowingly sought to prevent AOL and its members from discerning the true point of origin of the e-mail, including the domains or IP addresses from which Defendants actually transmit each batch of messages. By these devices, Defendants have transmitted unsolicited bulk e-mail nationwide to AOL members who expect AOL’s Preferred Mail tool to limit their receipt of such e-mail.

28.Defendants also misuse innocent parties’ e-mail servers to relay Defendants’ mail to AOL. Unaware that the open architecture of the Internet may be exploited by unscrupulous bulk e-mailers, the operators of most e-mail systems connected to the Internet configure their systems to permit "relaying" of e-mail. By adhering to this customary Internet practice, these innocent third parties unwittingly become intermediaries in the transmission of Defendants’ mail. Defendants frequently relay their mail through innocent third parties’ computer e-mail servers—including servers located overseas—in a deliberate attempt to conceal the point of origin of their e-mail transmissions and impair AOL’s efforts to prevent this unauthorized mail by technical means. Defendants’ practice of relaying imposes additional costs on the third parties whose computer resources are misappropriated, and who end up receiving complaints from the final recipients of Defendants’ unsolicited e-mail.

29.Defendants have further sought to conceal their identities by falsifying the information they submit to the InterNIC to register the domains from which they transact business on the Internet. For example, the administrative contact listed in the InterNIC’s directory for both "babeview.com" and "overtheair.com" is Defendant Joe Tajalle at OAE, at 2054 East Desert Inn Road, Las Vegas, Nevada. Although the directory identifies many other domains registered at this same 2054 East Desert Inn Road address, Defendants have provided the InterNIC with obviously fictitious individuals as the administrative contacts for those domains, including the following:

Domain Name Administrative Contact

vdocam.com Joe Arcan

trousersnake.com Joe Trousersnake

gettinoff.com Joe Gett

fourskin.com Joe Fourskin

spoogin.com Joe Spooge

30.Defendants have submitted other falsified information to the InterNIC in connection with the registration of the domains from which they transmit e-mail and transact business, including false addresses, false telephone numbers, and the names of non-existent administrative and technical contacts. For example, the InterNIC registration information provided by Defendants for "exoticbabes4u.com"—a now-defunct domain previously used by Defendants for their purported receipt of reply messages requesting that the recipient be deleted from Defendants’ mailing lists—contained the following fictitious information:

Address: 2345 1st Ave., Las Vegas, NV 89102

Administrative & Billing Contact: Norman Bates

Telephone Number: (702) 555-1212

DEFENDANTS’ UNLAWFUL USE OF AOL’S REGISTERED SERVICE MARKS

31.AOL has used as a trademark and as a service mark the initials "AOL," in various forms and styles, continuously in commerce to identify its products and services since October 1989. This mark has been registered as a trademark upon the Principal Register of the United States Patent and Trademark Office as United States Registration No. 1,984,337, registered July 2, 1996. The mark has been registered as a service mark upon the Principal Register of the United States Patent and Trademark Office as United States Registration No. 1,977,731, registered June 4, 1996.

32.AOL has used the name "America Online," in various forms and styles, continuously in commerce to identify its products and services since October 2, 1989. This mark has been registered as a service mark upon the Principal Register of the United States Patent and Trademark Office as United States Registration No. 1, 618, 148, registered October 16, 1990.

33.AOL has used a triangular logo continuously in commerce to identify its products and services since September 1989. This mark has been registered as a service mark upon the Principal Register of the United States Patent and Trademark Office as United States Registration No. 1, 961, 535, registered March 12, 1996.

34.The above-described trademark and service marks (the "Registered Marks") are valid and subsisting, remain in full force and effect, and are uncontestable under 15 U.S.C. § 1065. The registrations are attached at Exhibit C hereto.

35.Plaintiff AOL has expended substantial resources advertising and promoting the Registered Marks, and consumers throughout the world recognize the Registered Marks as designating products and services of the highest quality originating exclusively from AOL.

36.Defendants have directed to AOL members unsolicited commercial e-mail messages incorporating hypertext links to a Web site operated by Defendants at "http://www.luv2cu.com." These e-mail messages containing hypertext links function as direct points of access to Defendants’ "luv2cu.com" Web site. At this Web site, Defendants have unlawfully counterfeited, reproduced and used the Registered Marks in connection with Defendants’ provision of instructions for the downloading of software necessary for AOL members to view Defendants’ adult entertainment services.

37.By letter dated July 18, 1997, AOL demanded that Defendant OAE immediately cease and desist its unauthorized use of AOL’s Registered Marks. As of September 4, 1997, however, Defendant OAE was continuing to make use of these Registered Marks at the aforementioned Web site. In recent weeks, moreover, Defendants have falsified the header information on their e-mail to indicate that these messages originate from accounts at "aol.com," concealing the true point of origin of the e-mail and reproducing without authorization AOL’s Registered Mark.

DEFENDANTS’ UNSOLICITED BULK E-MAIL AND DEFENDANTS’ USE OF AOL’S SERVICE MARKS CAUSES SUBSTANTIAL HARM TO AOL’S COMPUTER SYSTEMS AND BUSINESS REPUTATION

38.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 servers which store and route e-mail messages between AOL’s customers. AOL permits its members to use the "aol.com" domain name-which incorporates and bears the "AOL" trade and service mark-giving each member a distinctive e-mail address from which to exchange e-mail with Internet users (e.g. "member96@aol.com"). AOL’s policies prohibit AOL members from transmitting unsolicited bulk e-mail either through AOL’s internal systems or through the Internet.

39.Any mail that is sent through the Internet to an AOL address must be transmitted to one of AOL’s mail servers. The AOL mail system has a finite capacity designed to accommodate the demands imposed by AOL’s customers. The system is not designed to accommodate, and it is vulnerable to disruption by, indiscriminate mass mailings from Defendants and other senders of unsolicited commercial e-mail. AOL has been forced to devote thousands of hours of staff time, and hundreds of thousands of dollars in new equipment to processing these mass mailings.

40.Defendants’ repeated transmission of batches of tens of thousands of pieces of unsolicited commercial e-mail also degrades the performance of AOL’s mail system, forcing AOL to divert computer processing resources away from the handling of legitimate e-mail for AOL customers. The aggregation of processing time required to process Defendants’ bulk e-mail transmissions slows the "delivery" of all e-mail to AOL members, and has resulted in significant delays in members’ receipt of their e-mail from the Internet.

41.Defendants’ practice of sending unsolicited commercial e-mail through AOL’s mail system has the effect of unfairly shifting to AOL the costs of transmission of Defendants’ promotional messages. It is AOL, rather than Defendants, which pays the costs of the additional computer and staff resources that must be devoted to the processing of the batches of e-mail that Defendants have transmitted through AOL’s computer systems.

42.Defendants’ activities have particularly adverse consequences with respect to the more than one million AOL members who pay for their access to AOL’s services and e-mail capability in increments of time. Time spent by such a member accessing, reviewing, and discarding Defendants’ e-mail messages is paid for by the member according to the member’s hourly billing rates. These AOL members end up paying twice for Defendants’ activities, through the increased costs and delays in AOL’s operations occasioned by the processing of mass quantities of e-mail, and through increased monthly billings for their connection time with AOL. The costs of member dissatisfaction ultimately are borne by AOL, in lost business and harm to its reputation and goodwill.

43.Defendants’ transmission of unsolicited commercial e-mail to AOL has damaged, and continues each day to damage, AOL’s business reputation and goodwill, and its relationship with its customers. Moreover, Defendants’ partially successful efforts to evade the tools (such as Preferred Mail) used by AOL to prevent the receipt of unsolicited commercial e-mail is likely to foster the erroneous impression amongst AOL members that AOL has authorized, endorsed, or otherwise approved of Defendants’ transmission to AOL members of unsolicited promotional messages for Defendants’ adult entertainment services. Defendants’ fraudulent use AOL’s domain name "aol.com" in the headers of their e-mail messages infringes AOL’s Registered Marks and falsely identifies AOL as the point of origin of Defendants’ unsolicited, unwanted messages. Defendants’ willful and unauthorized use of AOL’s Registered Marks at their Web site has added to the confusion, misleading AOL customers and others into the erroneous belief that AOL endorses Defendants’ services and/or is connected or affiliated with Defendants’ businesses.

44.Defendants’ transmission of unsolicited bulk e-mail also results in a substantial quantity of mail sent to invalid e-mail addresses, which causes additional harm to the performance of AOL’s mail systems. For each message that contains undeliverable recipients, AOL’s computers must attempt to transmit a message back to the originating site of the e-mail message to inform it of the delivery failure. Attempts to send such "bounce" messages back to Defendants’ computers consume considerable processing resources within AOL’s e-mail systems.

45.Defendants’ practice of falsifying e-mail "header" information exacerbates the damage to AOL’s computers, because AOL’s computer systems must fruitlessly spend days trying to return "bounce" messages back to Defendants’ domains. On information and belief, Defendants have engaged in a practice of disconnecting their computers from their IP addresses once their initial mail transmission is complete, thereby wholly undermining the ability of AOL’s computers to transmit "bounce" messages, and causing the needless consumption of valuable computer processing resources.

46.Defendants have refused to honor AOL’s request that they cease their unauthorized use of its e-mail capability. By letter dated January 15, 1997, AOL notified Randy King--the designated "technical contact" for Defendant OAE’s "babeview.com" domain--that he and his Internet services provider were prohibited from any further use of AOL’s proprietary computers and computer network. By letter dated April 28, 1997, AOL notified Defendant OAE, in its capacity as the operator of the "damsel.com" domain, that this domain was being added to the Preferred Mail list because of numerous AOL member complaints. Because of continuing member complaints, and Defendants’ efforts to circumvent Preferred Mail and other technical measures taken by AOL to prevent their unauthorized e-mail, AOL again wrote Defendant OAE on July 18, 1997, this time demanding that OAE permanently cease and desist from transmitting e-mail to AOL and its members and from using AOL’s Registered Marks in any manner whatsoever.

47.Defendants, however, have persisted in their practice of transmitting unsolicited bulk e-mail through AOL to AOL members, and have continued without authorization to counterfeit, reproduce and use copies of AOL’s Registered Marks. Since January 15, 1997, AOL has received tens of thousands of members complaints relating to or arising from Defendants’ e-mail promotions. Since AOL’s most recent demand on July 18, 1997, that Defendants cease their unauthorized transmission of e-mail, AOL has received hundreds of complaints per day from its members regarding Defendants’ continuing unsolicited commercial e-mail practices. Attached at Exhibit D hereto are examples of e-mails received by AOL members from Defendants as recently as September 12, 1997.

COUNT I

VIOLATIONS OF THE COMPUTER FRAUD AND ABUSE ACT

(18 U.S.C. § 1030 et seq.)

48.AOL repeats and realleges the allegations of paragraphs 1 through 47 of the Complaint.

49.In connection with the provision of online and Internet services to its members, AOL owns and maintains one or more "protected computers" as defined in the Computer Fraud and Abuse Act, through which e-mail transmissions are received, stored and disseminated in interstate and/or foreign commerce or communication  ("AOL’s protected computer facilities").

50.In the year preceding the date of the filing of this Complaint, Defendants repeatedly transmitted to AOL’s protected computer facilities batches of tens of thousands of unsolicited commercial e-mail messages without valid authorization. On each occasion on which Defendants transmitted these batches of unsolicited commercial e-mail messages, Defendants knew that the transmission of these e-mail messages would impair the operation of AOL’s protected computer facilities and AOL’s provision of e-mail services to its members.

51.In transmitting these batches of tens of thousands of unsolicited commercial e-mail messages, Defendants knowingly falsified portions of the Internet "header" information, and engaged in other deceptive practices, for the purpose of attempting to conceal from AOL and its members the actual domain and IP address which served as the point of origin of the transmission.

52.Defendants knowingly and intentionally caused the transmission of information to, and accessed, AOL’s protected computer facilities without authorization, and as a result of such conduct, caused damage, or recklessly caused damage in violation of 18 U.S.C. § 1030 (a)(5).

53.The damages suffered by AOL as a result of Defendants’ conduct include the impairment of the integrity and/or availability of data, programs, systems, and/or information in AOL’s protected computer facilities, and aggregate to at least $5,000 in value in the year preceding the date of filing of this Complaint.

54.Defendants threaten to continue to engage in the unlawful transmissions complained of herein, and unless restrained and enjoined will continue to do so, impairing the services provided to AOL members and causing AOL irreparable damage. Because of Defendants’ pattern and practice of employing aliases and using numerous and varying domain names and IP addresses from which to carry out their unlawful transmissions, AOL will otherwise be obliged to maintain multiple actions to prevent these activities. It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for Defendants’ continuing unlawful acts. AOL’s remedy at law is inadequate to compensate for the injuries threatened.

COUNT II

FALSE DESIGNATION OF ORIGIN

(15 U.S.C. 1125(a))

55.AOL repeats and alleges the allegations of paragraphs 1 through 54 of the Complaint.

56.Defendants have engaged in acts of unfair competition by falsely and without authorization using AOL’s domain name "aol.com" in the fraudulent return addresses of their unsolicited e-mail messages, in connection with Defendants’ sale, offering for sale, and distribution of Defendants’ adult entertainment services. Defendants’ use of this domain name amounts to a false representation that AOL is the point of origin of Defendants’ unsolicited, unwanted e-mail messages, in violation of 15 U.S.C. § 1125(a).

57.Particularly because "aol.com" incorporates and bears AOL’s registered trade and service mark, Defendants’ misappropriation of AOL’s domain name is likely to cause confusion and to deceive AOL members and others into the erroneous belief that AOL is connected to, affiliated with, approves, or condones Defendants’ indiscriminate, unsolicited e-mail practices and adult entertainment services, causing serious and irreparable damage to AOL in the form of lost goodwill and business reputation.

58.It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for Defendants’ continuing acts. AOL’s remedy at law is inadequate to compensate it for the ongoing injuries caused by such acts.

COUNT III

SERVICE MARK INFRINGEMENT

AND UNFAIR COMPETITION

(15 U.S.C. 1114(1) and 1125(a))

59.AOL repeats and alleges the allegations of paragraphs 1 through 58 of the Complaint.

60.In connection with its provision of online and Internet services, AOL has registered and used extensively in interstate commerce the Registered Marks, which identify its products and Internet and online services.

61.Defendants have knowingly and willfully infringed upon AOL’s Registered Marks by using, without AOL’s consent or authorization, in interstate commerce a counterfeit copy of AOL’s Registered Marks, in connection with Defendants’ sale, offering for sale, and distribution of Defendants’ adult entertainment services, in violation of 15 U.S.C. §§ 1114(1)(a) and 1125(a).

62.Defendants intentional and unauthorized use of AOL’s Registered Marks is likely to cause confusion and to deceive AOL members and others into the erroneous belief that AOL is the proprietor of, or has sponsored, endorsed, or approved Defendants’ indiscriminate, unsolicited e-mail practices and Defendants’ adult entertainment services, and/or that AOL is in some way connected to or affiliated with Defendants’ businesses, causing serious and irreparable damage to AOL and to the goodwill associated with its Registered Marks.

63.It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for Defendants’ continuing acts. AOL’s remedy at law is inadequate to compensate it for the ongoing injuries caused by such acts.

COUNT IV

DILUTION OF INTEREST IN SERVICE MARKS

(15 U.S.C. 1125(c)(1))

64.AOL repeats and alleges the allegations of paragraphs 1 through 63 of the Complaint.

65.In connection with its provision of online and Internet services, AOL has registered and used extensively in interstate commerce the Registered Marks, which identify its Internet and online services and which qualify as "famous" marks within the meaning of 15 U.S.C. § 1125(c)(1).

66.Defendants have knowingly and willfully, without AOL’s consent or authorization, reproduced, counterfeited, and used the Registered Marks after these marks became famous in interstate commerce, in connection with Defendants’ sale, offering for sale, and distribution of Defendants’ adult entertainment services.

67.Defendants’ intentional and unauthorized use of the Registered Marks in connection with its unsolicited messages is likely to dilute AOL’s interest in its Registered Marks by linking the Registered Marks to the transmission of unsolicited bulk e-mail, a practice which is widely condemned by the Internet community and which AOL does not maintain, tolerate, or condone, in violation of 15 U.S.C. § 1125(c)(1).

 COUNT V

VIOLATIONS OF THE VIRGINIA

COMPUTER CRIMES ACT

(Va. Code Ann. § 18.2-152.1 et seq.)

68.AOL repeats and realleges the allegations of paragraphs 1 through 67 of the Complaint.

69.In connection with the provision of online and Internet computer services to its members who are citizens of the Commonwealth of Virginia and other States, AOL maintains in the Commonwealth of Virginia computers and computer networks that are "property" within the meaning of Va. Code Ann. § 18.2-152.2.

70.Without authority, Defendants have repeatedly transmitted batches of tens of thousands of unsolicited commercial e-mail messages to AOL’s computers and computer networks in the Commonwealth of Virginia.

71.In transmitting these batches of tens of thousands of unsolicited commercial e-mail messages, Defendants knowingly falsified portions of the Internet "header" information on their e-mail messages for the purpose of attempting to conceal from AOL and its members the actual domain and IP address which served as the point of origin of the transmission.

72.Without authority, Defendants have obtained access to and used AOL’s computers and computer networks with the intent to obtain the use of AOL’s property and services by false pretenses, in violation of Va. Code. Ann. § 18.2-152.3.

73.The foregoing acts of Defendants have caused injury to AOL, AOL’s computers and computer networks, and to AOL business relations, reputation and goodwill.

74.Defendants threaten to continue to engage in the unlawful transmissions complained of herein, and unless restrained and enjoined will continue to do so, impairing the services provided to AOL members and causing AOL irreparable damage. Because of Defendants’ pattern and practice of employing aliases and using numerous and varying domain names and IP addresses from which to carry out their unlawful transmissions, AOL will otherwise be obliged to maintain multiple actions concerning the activities of these Defendants. It is difficult to ascertain the amount of compensation that could afford AOL adequate relief for Defendants’ continuing unlawful acts. AOL’s remedy at law is, therefore, inadequate to compensate for the injuries threatened.

COUNT VI

CONVERSION OR TRESPASS TO CHATTELS UNDER

THE COMMON LAW OF VIRGINIA

75.AOL repeats and realleges the allegations of paragraphs 1 through 74 of the Complaint.

76.The computers, computer networks, and computer services that comprise AOL’s e-mail system are the personal property of AOL.

77.Without valid authorization, Defendants have intentionally and repeatedly obtained access to, and made use, of AOL’s proprietary computer equipment and e-mail system to transmit unsolicited commercial e-mail to AOL members, for Defendants’ own economic benefit.

78.Through their practice and pattern of repeatedly transmitting unsolicited commercial e-mail in high volume through AOL’s proprietary computer equipment and e-mail system, Defendants have wrongfully exercised dominion over AOL’s computers and e-mail system in denial of AOL’s rights to that property. Defendants wrongful exercise of dominion over AOL’s proprietary computer equipment and e-mail system has deprived AOL and its customers of the legitimate use of this commercially valuable system.

79.Under the common law of Virginia, Defendants’ conduct constitutes trespass to AOL’s chattels, or, alternatively, conversion of AOL’s chattels.

80.As a result of Defendants’ trespass to, or conversion of, AOL’s chattels, AOL has suffered and will continue to suffer irreparable injury, loss of reputation and pecuniary damages. AOL’s damages include not only pecuniary injury, but the loss of its customers and the loss of the good will of its existing customers. Unless enjoined by this Court, Defendants will continue these acts of conversion and/or trespass, thereby causing AOL continuing and irreparable damage.

81.Defendants’ acts of trespass and/or conversion have been undertaken intentionally with malice, oppression and fraud, justifying the imposition of punitive damages in amount sufficient to punish Defendants and deter Defendants and others from engaging in similar conduct.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff AOL requests entry of judgment in its favor and against Defendants OAE and Joe Tajalle as follows:

a.Awarding AOL compensatory damages from Defendants, jointly and severally, in an amount to be proven at trial, caused by Defendants’ violation of the Computer Fraud and Abuse Act and the Virginia Computer Crimes Act, and acts of conversion and trespass to chattels under Virginia common law;

b.Awarding AOL treble damages with respect to Defendants’ intentional and willful violations of the Lanham Act, pursuant to 15 U.S.C. § 1117.

c.Awarding AOL punitive damages against Defendants, jointly and severally, in an amount sufficient to punish and deter these Defendants and others from similar malicious, oppressive, and fraudulent conduct in the future; and

d.Granting preliminary and permanent injunctive relief against OAE, Joe Tajalle, their agents, and all persons acting in concert or participation with them, enjoining them from:

1.Sending or transmitting any unsolicited electronic mail message, or any electronic communication of any kind, to AOL or its members without prior written authorization;

2.Using AOL’s computers or computer networks in any manner in connection with the transmission or transfer of any form of electronic information across the Internet;

3.Sending or transmitting electronic mail or messages 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;

4.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

5.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;

e.Awarding AOL and its attorneys its costs and attorneys’ fees in prosecuting this action; and

f.Granting AOL such other or additional relief as this Court deems just and proper under the circumstances.

Dated: , 1997

By:
________________________________

America Online, Inc.
Randall Boe
(VSB# 27951)
22000 AOL Way
Dulles, Virginia 20166-9323
(703) 265-3750

By:
________________________________

LATHAM & WATKINS
Jon L. Praed
(VSB# 40678)
1001 Pennsylvania Avenue,N.W.
Suite 1300
Washington, D.C.
20004-2505
(202) 637-2200

OF COUNSEL

LATHAM & WATKINS
Everett C. Johnson, Jr.
Richard P. Bress
Elizabeth T. Carlson
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004-2505
(202) 637-2200