Parker v. C.N. Enterprises Order

IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS
345th JUDICIAL DISTRICT

TRACY LaQUEY PARKER,
ZILKER INTERNET PARK, INC.,
PATRICK PARKER, PETER RAUCH,
TEXAS INTERNET SERVICE PROVIDERS
ASSOCIATION and EFF-AUSTIN,
Plaintiffs,

vs.

C.N. ENTERPRISES and CRAIG NOWAK,
Defendants.

No. 97-06273

FINAL JUDGMENT

After notice to all parties, this matter came before the Court on November 10, 1997 for a final trial on the merits. Based on the pleadings on file and the evidence presented this day to the Court, the Court enters the following as its order, findings and rulings:

1. Plaintiff Tracy LaQuey Parker is the owner of the Internet domain name flowers.com. Ms. Parker, along with her husband Patrick Parker and Peter Rauch, are business partners who have used the Internet domain name flowers.com as part of their business enterprise.

2. Plaintiff Zilker Internet Park, Inc., was the administrator of the Internet domain name flowers.com at all relevant times and was the Internet service provider for the Parkers. Electronic mail addressed to any address at flowers.com was routed through Zilker Internet Park's Internet mail servers.

3. The Plaintiffs had the exclusive right to use the Internet domain name flowers.com, and did not give permission to any outside persons, including the Defendants, to make any commercial use of that name.

4. On or about March 31 and April 1, 1997, the Defendants sent unsolicited= mass junk mailings (also known as spam) over the Internet to many thousands, perhaps millions, of people. In its spam, the Plaintiffs used a false electronic return addresses to disguise the junk mailings' origins. The false return addresses used were owned by Tracy LaQuey Parker of Austin, Texas, and hosted on the computers of Zilker Internet Park, an Austin Internet service provider.

5. Because many thousands of the Internet addresses were not valid addresses, thousands upon thousands of copies of junk mail were returned to Ms. Parker and her business associates via Zilker Internet Park's computers. This massive, unwanted delivery of the Defendants' garbage to the Plaintiffs' doorstep inflicted substantial harm, including substantial service disruptions,
lost access to communications, lost time, lost income and lost opportunities.

6. In addition, the Defendants unauthorized use of the flowers.com domain name caused actual damages and irreparable harm to Zilker Internet Park. The Defendants used Zilker Internet Park's electronic mail handling resources and storage capacity without permission. The company was forced to handle thousands and thousands of bounced e-mail messages, which temporarily disabled its mail server.

7. After the filing of this lawsuit, additional identical mass mailings were made with identical language as the spam inflicted on the Plaintiffs. The evidence indicates that the Defendants are continuing to send unsolicited mass mailings over the Internet. At least some of these messages were addressed to addresses at the same flowers.com domain name used and owned by the
Plaintiffs. From this evidence, and from the circumstances of the initial mailing using flowers.com as the return address, it appears from the preponderance of the evidence that Defendants acted knowingly.

8. In light of the evidence, the Court finds that the Plaintiffs are entitled to a permanent injunction. The Defendants did not and do not have the legal right to use flowers.com as a return address for their mass mailing, and the Defendants unauthorized use of that address constituted a common law nuisance and trespass. The Court additionally finds that the Plaintiffs have suffered, and will continue to suffer if not enjoined, irreparable harm in the form of diminution in value of Plaintiffs' domain name; the possibility that Plaintiffs' reputation will be damaged forever by unauthorized use of a domain name associated with them in the controversial and hated practice of Internet spamming; and service disruptions. The potential harm to the Plaintiffs cannot be adequately valued in damages, and therefore the Plaintiffs have no adequate remedy at law. The balance of interests favors a permanent injunction, as the Defendants will suffer no harm in being denied the right to use the flowers.com domain name return address.

9. The Court further finds that the Plaintiffs, including the Plaintiffs Texas Internet Service Providers Association and its members, and EFF-Austin and its members, will suffer irreparable harm if the Defendants are not prohibited from using other Internet domain names without permission as the return addresses of their mass mailings. If the Defendants are not enjoined from using other domain names without permission, the Defendants will continue to cause the same injuries that were inflicted upon the Plaintiffs, yet evade any effective review or remedy for their actions.

10. The Court further finds that Plaintiffs Tracy LaQuey Parker, Patrick Parker, Peter Rauch and Zilker Internet Park suffered actual damages from the unauthorized actions of the Plaintiffs, including lost time, lost income, lost business opportunities and lost use of their respective computer systems. The Court also finds that it was necessary for the Plaintiffs to retain the services
of attorneys in order to redress this damages, and that the Plaintiffs are entitled to an award of their reasonable attorney's fees.

IT IS THERFORE ORDERED that Defendants C.N. Enterprises and Craig Nowak, jointly and singly, their officers, agents, servants, employees, and attorneys, and any other persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise, be and there hereby are permanently enjoined from the following:

1. Sending or causing to be sent any Internet electronic mail message or other electronic communication using the domain name flowers.com as any portion of the return address of that message, or otherwise using the domain name flowers.com in any portion of the message header information.

2. From sending any Internet electronic mail or other electronic communication incorporating in any electronic return address information any Internet domain name without the express written permission of the owner and administrator of that Internet domain name.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that Plaintiffs Tracy LaQuey Parker, Patrick Parker, Peter Rauch, and Zilker Internet Park, Inc., have and recover from Defendants C.N. Enterprises and Craig Nowak, jointly and severally, their actual damages in the amount of $13,910 and attorney's fees in the amount of $5,000 and that in addition to this total amount of $18,910 Plaintiffs Tracy LaQuey Parker, Patrick Parker, Peter Rauch, and Zilker Internet Park, Inc., have and recover from C.N. Enterprises and Craig Nowak their costs of Court and post-judgment interest at the rate of ten percent (10%) per annum compounded annually from and after the date of November 10, 1997.

All relief not previously granted or specifically granted herein is denied.

SIGNED this 10th day of November, 1997.

/s/ Suzanne Covington

TRAVIS COUNTY DISTRICT JUDGE