AOL v. Web Communications Complaint

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA,

ALEXANDRIA DIVISION

AMERICA ONLINE, INC.
Plaintiff,

v.

WEB COMMUNICATIONS, SEX WEB, INC., and EDDIE DAVIDSON,
Defendants.

CIVIL ACTION NO. 98-289-A

NATURE OF PLAINTIFF’S CLAIMS

1. Defendants Web Communications, Sex Web, Inc., and Eddie Davidson, and parties acting in concert with them, have repeatedly bombarded America Online, Inc. ("AOL") and its members with tens of thousands of deceptive, unsolicited, and unwanted Internet electronic mail ("e-mail") messages. Defendants’ junk e-mail advertises Internet Web sites such as "aolsex.net" and "websex.net," at which Defendants make available a variety of pornographic products and services, including "extreme erotic sex photos and videos" and "live video sex." Defendants have indiscriminately transmitted this pornographic junk e-mail through the Internet to AOL, without regard to the fact that many underage AOL members receive these unwanted advertisements for Defendants’ sexually explicit Web sites. Despite demands by AOL that they cease sending their unsolicited e-mail, Defendants have refused to stop these mass mailings and have adopted deceptive techniques designed to frustrate AOL’s ability to detect and filter these e-mail messages. Among other tactics employed, Defendants forge "aol.com" within their e-mail messages so the messages falsely appear to originate from an AOL member. In addition to these practices, Defendants operate sites on the World Wide Web ("Web sites") using the "AOL" trademark and service mark as part of several of Defendants’ domain names, including "aoleatme.com"; "aolplaymates.com"; "aolsexlinks.com"; "aolsexshows.com"; "aoluncut.com"; "aolsex.net"; "aollinks.com" and "aolsex.com." Recently, Defendants published a Web page advertising pornographic services at "aolsex.com," deliberately imitating the trade dress, and look and feel, of AOL’s homepage at "aol.com." Defendants’ use of "AOL" and "aol.com" in their unsolicited bulk e-mail, their use of AOL’s trademark and service mark in the names of their Web sites, and their counterfeiting of AOL’s homepage are intended to and do create the misperception among AOL members that AOL condones or tolerates the highly criticized practice of sending unsolicited bulk e-mail and the sexually explicit services offered by Defendants. Defendants’ junk e-mail has resulted in thousands of member complaints and has clogged AOL’s computers and computer system, co-opting valuable computer and staff resources needed to deliver legitimate Internet e-mails.

2. Defendants’ indiscriminate mass mailings and deceptive practices cause serious and irreparable injury to AOL by impairing the functioning of AOL’s e-mail system and harming AOL’s business reputation and goodwill among its members. Defendants have violated the Lanham Act (15 U.S.C. § 1051 et seq.), the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.), and the Virginia Computer Crimes Act (Va. Code Ann. § 18.2-152.2 et seq.), and have trespassed upon AOL’s personal property in violation of Virginia common law. Defendants have, in addition, conspired with others to engage in unlawful conduct in violation of Virginia common law.

3. AOL has demanded that Defendants stop their mass mailings and their misuse of AOL’s intellectual property, and AOL has tried to stop Defendants’ misappropriation of its computers and computer system through technical means, but its attempts at self-help have proven unsuccessful. By this action, AOL seeks an injunction to prevent further unlawful conduct, and compensatory and punitive damages.

THE PARTIES

4. 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 members to obtain various services, including access to the Internet. Its central computer system, which includes specialized computers (called "servers") that process e-mail messages, is located in Reston, 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.

5. Since October 1989, 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. 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. AOL is the owner of these registrations, which are attached at Exhibit A hereto.

6. AOL has invested substantial resources to promote and protect the "AOL" trademark and service mark in connection with the interstate and worldwide sale of its products and services.

7. AOL has expanded upon its use of the "AOL" name and mark by actively adopting other "AOL"-based marks, which have not as yet been registered in the United States Patent and Trademark Office, including the famous "aol.com" mark. These additional "AOL"-based marks are used extensively in interstate commerce and are recognized worldwide as source identifiers of AOL’s online services. AOL has registered more than 40 of these marks as domain names with the InterNIC, including "aol.com," "aolbusiness.com," "aolenterprise.com," "aolentertainment.com," "aolhealth.com," "aolmusic.com," "aolstyle.com," "aolkids.com," "aolsoccer.com," "aolfitness.com," "aollove.com," "aolliving.com," "aolromance.com," "aolcomputing.com," "aolmoney.com," "aolpeople.com," "aoltalk.com," "aolmovies.com," and "aolfinance.com."

8. On information and belief, Web Communications is a d/b/a designation for Eddie Davidson, with its principal place of business at 205 Katherine Boulevard #1102, Palm Harbor, Florida 34684.

9. On information and belief, Web Communications operates and transacts business, or has operated and transacted business, from numerous InterNIC-registered Internet domains, including the following: "aoleatme.com"; "aolplaymates.com"; "aolsexlinks.com"; "aolsexshows.com"; "aoluncut.com"; "aolsex.net"; "cyberotic.com"; "websex.net"; "adultheat.com"; "aahsex4u.com"; "leathernlace.com"; "adulteress.com"; "cybersexchat.com"; "malestuds.com"; "livegayboys.com"; "livegayshows.com"; "nastylivegirls.com"; "collegehookers.com"; "lovejuices.com"; "angieseroticashop.com"; "hardbodies.net"; "horny-girls.com"; "eroticnights.com"; "hottasses.com"; "tanyanest.com"; "aadultsex.com"; "throttleup.com"; "night-heat.com"; "degenerationx.com"; "d-generationx.com"; "dgenerationx.com"; "diamondsshowclub.com"; "xxxking.com"; "menlovingmen.com"; "girlslovinggirls.com"; "biboyz.com"; "purpleasure.com"; "badboyscum.com"; "cybereros.com"; "freakoftheweek.com"; and "mirrorme.com."

10. On information and belief, Sex Web, Inc. ("Sex Web") is a d/b/a designation for Eddie Davidson, with its principal place of business at 205 Katherine Boulevard #1102, Palm Harbor, Florida 34684.

11. On information and belief, Sex Web operates and transacts business, or has operated and transacted business, from numerous InterNIC-registered Internet domains, including the following: "aollinks.com"; "aolsex.com"; "malibuheat.com"; "adultonlinesex.com"; "miami-nights.com"; "hotasses.com"; "hottbabes.com"; "hotwebsex.com"; "nightvisions.com"; "teazzers.com"; "cashmerenights.com"; "cyberbanners.com"; and "cybersexzone.com."

12. On information and belief, Eddie Davidson is an individual who resides at 205 Katherine Boulevard #1102, Palm Harbor, Florida 34684. He operates and transacts business, or has operated and transacted business, under the corporate names "Web Communications" and "Sex Web," using the numerous InterNIC-registered Internet domains listed above.

13. On information and belief, Web Communications, Sex Web, and Eddie Davidson jointly operate and transact business from the aforementioned domains, acting in concert with one another and with third party contractors and/or with agents unknown to AOL to send unsolicited bulk e-mail to AOL and its members.

JURISDICTION AND VENUE

14. This action arises out of, among other things, Defendants’ violation of 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.

15. 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.

16. On information and belief, Defendants, either individually or through their agents, have transmitted or caused to be transmitted junk e-mail to AOL’s computers and computer system, which are physically present in this district.

THE INTERNET

17. 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.

18. The Internet makes it possible for a user rapidly to exchange 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 and even hundreds of thousands of copies of a single message.

19. 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 street addresses and telephone numbers used by individuals and businesses for their mail and 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.

20. 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 domain names with the ".com" designation (e.g., the domain names "aolsex.com" and "aolsexlinks.com" used by Defendants), while educational and governmental organizations usually are assigned ".edu" and ".gov" domain names (e.g., "topuniversity.edu" and "federalagency.gov"). 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.

21. An e-mail address consists of a name corresponding to the individual user’s account name (the "user name") and the name of the domain within which the user’s account is located, separated by the "@" symbol (e.g., "jdoe@company.com").

22. E-mail messages contain "headers," generated by the sender’s Internet Service Provider ("ISP"), which identify the sender’s return e-mail address, the message’s "subject," and other information related to the transmission of the e-mail message (such as the date, time, and routing information). AOL’s system is configured such that these "headers" are excerpted at the beginning of each message and appear in full text at the conclusion of the message.

23. A sender who wishes to conceal his true identity and e-mail address can falsify the header information in his e-mail transmissions or manipulate the information used in the electronic header. Various "stealth" software programs, designed for and marketed to the senders of junk e-mail, facilitate the falsification of e-mail header information in mass mailings.

24. 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. 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 "aolsex.net" or "aolsexlinks.com" domains would enter the Web addresses for those domains—"http://www.aolsex.net" or "http://www.aolsexlinks.com."

25. 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.

JUNK E-MAIL

26. It costs virtually nothing to transmit an e-mail message, regardless of the number of recipients. Considerable resources are expended by the ISP at the receiving end, however, storing, sorting, and delivering the e-mail.

27. Although the sender of junk mail sent through the postal system must pay the costs of delivery through the purchase of stamps, there are no stamps on the Internet. Instead, the costs of storing, sorting, and delivering junk e-mail are borne involuntarily by the recipient’s ISP, and ultimately the recipients themselves. When computer and staff resources are consumed by massive batches of junk e-mail, the delivery of legitimate, authorized e-mail is often impaired.

28. Bulk e-mailers engage in the practice precisely because the medium permits them to shift their marketing costs onto the recipients’ ISPs, such as AOL. The ability to send junk e-mail from "throw away" Internet accounts or with falsified headers, and thereby avoid accountability to the consumer, has made junk e-mailing an irresistibly tempting marketing method for disreputable would-be entrepreneurs peddling get-rich schemes and dubious, often pornographic, products and services.

29. The practice of unsolicited bulk e-mailing is widely condemned in the Internet community. AOL’s Terms of Service specifically prohibit AOL members from using their AOL accounts to send unsolicited bulk e-mail, and expressly reserve AOL’s right to block unsolicited e-mail sent to its members from the Internet. In addition, AOL’s Terms of Service prohibit members from "harvesting" or collecting the e-mail addresses of other AOL members.

30. On information and belief, Defendants, either individually or through their agents, maintain or have maintained a membership with AOL, which membership has been used to facilitate the collection or harvesting of members’ e-mail addresses.

31. AOL’s e-mail system was created solely for the benefit of AOL members, who pay prescribed fees and who agree to adhere to AOL’s Terms of Service. The e-mail system is operated through dedicated servers that store and route e-mail messages between AOL’s members. AOL permits its members to use the "aol.com" domain name, which when combined with a unique user name gives each member a distinctive e-mail address from which to exchange e-mail with Internet users (e.g., "member96@aol.com").

32. Any e-mail that is sent through the Internet to an AOL address is first received and sorted by AOL’s mail servers. The AOL mail system has a finite capacity designed to accommodate the demands imposed by AOL’s members. AOL’s computers and computer system are not designed to accommodate, and are vulnerable to disruption by, Defendants’ and others’ indiscriminate mass mailings of unsolicited e-mail. AOL has been forced to devote thousands of hours of staff time to address member complaints about this unsolicited e-mail and millions of dollars for new equipment to process the mass mailings.

33. The repeated transmission of massive batches of unsolicited e-mail messages by Defendants and other junk e-mailers also degrades the performance of AOL’s computers and computer system, forcing AOL to divert computer processing resources away from the handling of authorized e-mail for AOL members. The aggregation of time required to process these bulk e-mail transmissions slows the "delivery" of all e-mail to AOL members, and has at times resulted in significant delays in members’ receipt of their e-mail from the Internet.

34. The transmission of unsolicited bulk e-mail by Defendants and other junk e-mailers also results in a substantial quantity of mail sent to invalid e-mail addresses, which causes additional harm to the performance of AOL’s computers and computer system. 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 the sender’s computers consume considerable processing resources within AOL’s computers and computer system.

35. AOL has undertaken various technical efforts to permit its members to opt out of receiving messages from domains and IP addresses that are or have been the subject of member complaints regarding unsolicited bulk e-mail. These methods, however, rely on truthful e-mailing practices to be successful. When senders, such as Defendants, mail from multiple and varying domains, employ random and varying user names, or falsify the headers on their e-mails to indicate that their messages are from domains that AOL does not or cannot filter (e.g. "msn.com" or "aol.com"), AOL’s computers and computer system cannot detect and filter the e-mail.

36. The practice of sending unsolicited commercial e-mail through AOL’s computers and computer system has the effect of unfairly shifting to AOL and its members the costs of transmitting these promotional messages. It is AOL, rather than the junk e-mailer, that pays the costs of the additional computer and staff resources that must be devoted to the processing of the massive batches of e-mail that junk e-mailers transmit through AOL’s computers and computer system. AOL members also pay for these unwanted bulk messages in time and effort wasted in opening, reading, and discarding the messages.

37. Junk e-mailers’ activities have particularly adverse consequences for those AOL members who pay for their access to AOL’s online services and e-mail capability in increments of time. Time spent by such a member accessing, reviewing, and discarding junk e-mail messages is paid for by the member according to the member’s hourly billing rates. These AOL members thus end up paying twice for the activities of junk e-mailers, 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.

38. The receipt of unsolicited, unwanted e-mail is the number one complaint voiced by AOL members about the Internet e-mail system. AOL receives more than one hundred thousand such complaints per day.

DEFENDANTS’ JUNK E-MAILING PRACTICES

39. 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 system to AOL’s members.

40. Defendants’ promotional e-mails generally invite the recipient to view "hot steamy adult action" or "naughty pictures" by visiting certain Web sites maintained by Defendants, such as "aolsex.net," "websex.net" and "malibuheat.com." An example of a typical message is attached at Exhibit B hereto.

41. The promotional messages that Defendants direct to AOL members incorporate 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. Defendants’ mass mailings are particularly pernicious because they are sent indiscriminately to minors as well as adults.

42. At the Web sites referenced in their e-mail messages, Defendants purport to enable Internet users with credit cards to view "live" adult entertainment. For the provision of these services, Defendants charge a membership fee of $19.95 for the first month. As an example, attached at Exhibit C is a copy of one of Defendants’ unsolicited e-mail messages and the Web site to which the recipient would have been transported had he or she clicked the embedded hypertext link.

43. AOL members are annoyed and disgusted when they receive Defendants’ unsolicited pornographic messages. For example, an AOL member forwarded one of Defendants’ messages to AOL, adding the statement: "I’m fed up with all the junk porno mail. This is ridiculous! I used to check my mail several times a day. Now I hate to go online because it’s such a hassle wading through tons of junk mail, and upsetting to have to be faced with so much porno junk mail. . . . I’m basically unable to use AOL because I rarely have the time to weed out all the crap! Clean up or I’m out!" Another AOL member forwarded one of Defendants’ messages, with the following complaint: "To the AOL staff member that reads this, I’m really tempted to give up being on line because of smut like this. I’m going to seriously consider not renewing my account with aol when it expires. I’m really disgusted with garbage and smut." These complaints are attached at Exhibit D hereto.

44. By letter dated October 24, 1997, sent via first class mail, AOL notified Web Communications that Web Communications and its agents were prohibited from further transmission of any e-mail through AOL’s computers and computer system. Defendants continued to send their unsolicited messages. By letter dated December 30, 1997, sent via Federal Express and e-mail, AOL again notified Web Communications and its administrative contact, Eddie Davidson, that they and their agents were prohibited from further transmission of any e-mail through AOL’s computers and computer system. Defendants, however, have persisted in their practice of transmitting junk e-mail through AOL to AOL members.

45. Not only have Defendants refused to cease and desist, but Defendants employ false and deceptive practices to mask their identities, and the source and quantity of their transmissions, in order to evade AOL’s electronic filtering mechanisms and avoid receiving the thousands of "bounced" messages and complaints associated with their mass e-mailings. For example, instead of transmitting from one consistent domain and using one consistent user name, Defendants transmit from numerous, constantly varying domains and employ randomly generated user names, making it appear as though their messages come from a number of different sources rather than one particular (traceable) account.

46. Defendants also intentionally forge the "from line" in the electronic return addresses of their messages to conceal the domains from which they operate and transmit their e-mail. To mask the quantity of messages they send, Defendants append different sets of names and numerals—which seem to have been automatically generated by a computer program—to those forged domain names, making it appear as though the messages were sent from different accounts within the forged domain. The purpose and effect of these practices is to prevent AOL from using technical means to block the unsolicited e-mail messages before they are delivered.

47. Defendants’ transmission of unsolicited bulk e-mail to AOL has damaged, and continues each day to damage, AOL’s business, its goodwill, and its relationship with its members.

DEFENDANTS’ UNLAWFUL USE OF
AOL’S INTELLECTUAL PROPERTY

48. Defendants intentionally forge the domain name "aol.com" in the "from line" in the electronic return addresses of their messages to make it appear as though their messages are sent from a member of AOL. When Defendants use AOL’s domain name (which incorporates AOL’s registered trademark and service mark) in the return addresses of their messages, it creates the false and damaging misperception among the AOL members who receive these messages that AOL endorses or condones Defendants’ unsolicited bulk e-mail practices and the pornographic services they promote. For example, an AOL member forwarded one of Defendants’ messages containing "aol.com" forgery to AOL, with the following complaint: "HOW CAN YOU ALLOW AOL MEMBERS TO SEND THIS UNSOLICITED CRAP?!??? YOU MAY NOT BE ABLE TO STOP THESE FROM OTHER ISPS, BUT SURELY YOU CAN STOP SOMEONE UNDER YOUR OWN JURISDICTION???? If I see another one from a fellow AOL member, I am going to reconsider my service with you. I’m TIRED of getting SMUT email!!!!!!" Another AOL member forwarded one of Defendants’ messages containing "aol.com" forgery, adding the statement: "I hate junk mail, but I particularly dislike the ‘see my dirty pictures’ crap. Surely there’s a way to get rid of this bottom-feeding (no pun intended) junk before I have to waste my time to trash it. And this garbage is coming from within the AOL system." These complaints, attached at Exhibit E hereto, evidence the member confusion caused by Defendants’ misappropriation of AOL’s domain name and registered mark.

49. Defendants also use numerous domain names which incorporate AOL’s registered trademark and service mark, including "aolsex.com"; "aollinks.com"; "aoleatme.com"; "aolplaymates.com"; "aolsexlinks.com"; "aolsexshows.com"; "aoluncut.com"; and "aolsex.net." When Defendants incorporate AOL’s registered trademark and service mark in Defendants’ domain names, it creates the false and damaging misperception that AOL is the source of, is responsible for, endorses, or condones Defendants’ unsolicited bulk e-mail and the pornographic services that Defendants offer at their Web sites.

50. By letter dated August 1, 1997, AOL demanded that Defendant Web Communications discontinue any and all use of and relinquish any claim to the domain name "aolsex.net" and any similar name likely to confuse or deceive consumers into believing that AOL is the source of, or is in any way affiliated with, Defendants’ goods or services. Defendants, however, continue to make use of "aolsex.net" and numerous other domain names which incorporate the "AOL" mark.

51. Beginning on or about March 1, 1998, Defendants published a Web page at "aolsex.com" advertising various pornographic services. This Web page—which can be reached by any Internet user typing "aolsex.com"—deliberately imitates the distinctive trade dress, and look and feel, of AOL’s "aol.com" homepage. Internet users, including AOL members, are likely to be confused by the striking, purposeful similarity in appearance into believing that AOL is affiliated with, endorses, or condones Defendants and/or the pornographic services advertised on Defendants’ Web page.

52. AOL’s valuable trademark and service mark "AOL," the entire "AOL"-based family of marks, and the goodwill associated therewith are diluted and damaged by their wrongful association with pornographic products and services, pornographic junk e-mail, and junk e-mailers like Defendants.

VIOLATION OF THE FEDERAL ANTI-DILUTION ACT OF 1995

53. AOL repeats and realleges the allegations of paragraphs 1 through 52 of the Complaint.

54. In connection with its provision of online and Internet services, AOL has used extensively in interstate commerce the registered mark "AOL," and the entire "AOL"-based family of 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).

55. Defendants have knowingly and willfully, without AOL’s consent or authorization, reproduced, counterfeited, and used the registered mark "AOL" after this mark became famous in interstate commerce, in connection with Defendants’ sale, offering for sale, and distribution of Defendants’ pornographic services.

56. Defendants’ intentional and unauthorized use of the "AOL" mark as part of their domain names "aoleatme.com"; "aolplaymates.com"; "aolsexlinks.com"; "aolsexshows.com"; "aoluncut.com"; "aolsex.net"; "aollinks.com" and "aolsex.com," and in connection with their pornographic products and services and their unsolicited messages has lessened the capacity of the "AOL"-based family of marks to identify and distinguish AOL’s online products and services, and has caused dilution of the distinctive quality of the entire family of "AOL" marks, in violation of the Lanham Act, 15 U.S.C. § 1125(c)(1), by linking the "AOL" mark, and the other marks in the "AOL" family of marks, to pornography and 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.

57. Defendants’ intentional and unauthorized use of AOL’s domain name "aol.com" in the electronic headers of their unsolicited e-mail messages in connection with Defendants’ sale, offering for sale, and distribution in interstate commerce of Defendants’ pornographic services has lessened the capacity of the "AOL"-based family of marks to identify and distinguish AOL’s online products and services, and has caused dilution of the distinctive quality of the entire family of "AOL" marks, in violation of the Lanham Act, 15 U.S.C. § 1125(c)(1), by linking the "AOL" mark, and the other marks in the "AOL" family of marks, to pornography and 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.

58. Defendants threaten to continue to engage in the unlawful actions alleged herein, and unless restrained and enjoined will continue to do so, causing irreparable harm to AOL. 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.

SERVICE MARKS AND TRADEMARKS

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

60. In connection with its provision of online and Internet services, AOL owns and has used extensively in interstate commerce the registered mark "AOL," which identifies its Internet and online services and which qualifies as a "famous" mark within the meaning of 15 U.S.C. § 1125(c)(1).

61. AOL has expanded upon its use of the "AOL" name and mark by actively adopting other "AOL"-based marks, which have not as yet been registered in United States Patent and Trademark Office, including the well known "aol.com" mark.

62. Defendants have knowingly and willfully, without AOL’s consent or authorization, reproduced, counterfeited, and used the registered mark "AOL" after this mark became famous in interstate commerce, in connection with Defendants’ sale, offering for sale, and distribution of Defendants’ pornographic services.

63. Defendants’ "aolsex.com"; "aollinks.com"; "aoleatme.com"; "aolplaymates.com"; "aolsexlinks.com"; "aolsexshows.com"; "aoluncut.com"; and "aolsex.net" domain names are so similar to "AOL," "aol.com," and the other "AOL"-based names and marks, as to be likely to cause confusion, mistake or deception as to the source of origin of Defendants’ pornographic products and services, in that consumers and others are likely to believe that Defendants’ bulk e-mail practices and pornographic services are sponsored, approved, or produced by or in affiliation with AOL, in violation of 15 U.S.C. §1114(1).

64. Defendants threaten to continue to engage in the unlawful actions alleged herein, and unless restrained and enjoined will continue to do so, causing irreparable harm to AOL. 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.

FALSE DESIGNATION OF ORIGIN

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

66. Defendants have engaged in acts of unfair competition by falsely and without authorization using AOL’s domain name "aol.com" in the electronic headers of their unsolicited e-mail messages, and imitating the distinctive trade dress, and look and feel, of AOL’s homepage at their Web sites, in connection with Defendants’ sale, offering for sale, and distribution in interstate commerce of Defendants’ pornographic services. Defendants’ conduct amounts to a false representation that AOL is the point of origin of Defendants’ unsolicited, unwanted e-mail messages and pornographic services, in violation of the Lanham Act, 15 U.S.C. § 1125(a).

67. Defendants’ misappropriation of AOL’s domain name, trade dress and is likely to cause confusion and to deceive AOL members and others into the erroneous belief that AOL is connected to, affiliated with, approves of, or condones Defendants’ indiscriminate, unsolicited e-mail practices and pornographic services, causing serious and irreparable damage to AOL in the form of lost goodwill and business reputation.

68. Defendants threaten to continue to engage in the unlawful actions alleged herein, and unless restrained and enjoined will continue to do so, causing irreparable harm to AOL. 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.

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

70. Defendants’ aforesaid intentional and unauthorized use of the "AOL" mark and AOL’s trade dress in connection with Defendant’s pornographic products and services and unsolicited e-mail messages constitutes unfair competition, and infringes AOL’s common law trademark and service mark rights in the "AOL" name and mark and all other "AOL"-based names and marks owned by AOL, as well as AOL’s trade dress.

71. Defendants threaten to continue to engage in the unlawful actions alleged herein, and unless restrained and enjoined will continue to do so, causing irreparable harm to AOL. 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.

72. AOL repeats and realleges the allegations of paragraphs 1 through 71 of the Complaint.

73. In connection with its provision of online and Internet computer services to its members, who are citizens of the Commonwealth of Virginia and other states, AOL maintains computers and a computer system that are "protected computers" as the term is defined in 18 U.S.C. § 1030(e)(2)(B) because they are used in interstate commerce and communication.

74. AOL’s Terms of Service specifically prohibit AOL members from using their AOL accounts to harvest or collect the e-mail addresses of other AOL members.

75. On information and belief, Defendants maintain or have maintained an AOL membership and have used that membership to harvest or collect the e-mail addresses of other AOL members.

76. Defendants have intentionally "exceeded authorized access," as that term is defined in 18 U.S.C. § 1030(e)(6), to AOL’s protected computers by harvesting or collecting the e-mail addresses of other AOL members, have obtained information via an interstate communication to which they were not entitled, and thereby have violated 18 U.S.C. § 1030(a)(2).

77. By exceeding authorized access to AOL’s protected computers, Defendants have caused AOL loss or damage aggregating at least $5,000 during a one-year period preceding the filing of this complaint.

78. Defendants threaten to continue to engage in the unlawful actions alleged herein, and unless restrained and enjoined will continue to do so, causing irreparable harm to AOL. 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.

OF THE COMPUTER FRAUD AND ABUSE ACT

79. AOL repeats and realleges the allegations of paragraphs 1 through 78 of the Complaint.

80. In connection with the provision of online and Internet services to its members, AOL maintains one or more "protected computers" as the term is defined in the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(e)(2)(B), through which e-mail transmissions are received, stored, and disseminated in interstate and/or foreign commerce or communication ("AOL’s protected computer facilities").

81. In the year preceding the date of the filing of this Complaint, Defendants repeatedly transmitted to AOL’s protected computer facilities batches 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.

82. 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.

83. 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).

84. 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.

85. 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. 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.

COMPUTER CRIMES ACT

86. AOL repeats and realleges the allegations of paragraphs 1 through 85 of the Complaint.

87. 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 a computer system that are "property" within the meaning of Va. Code Ann. § 18.2-152.2.

88. Without authority, Defendants have repeatedly transmitted huge batches of unsolicited commercial e-mail messages to AOL’s computers and computer system in the Commonwealth of Virginia.

89. In transmitting these batches 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.

90. Without authority, Defendants have obtained access to and used AOL’s computers and computer system 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.

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

92. 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. 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.

THE COMMON LAW OF VIRGINIA

93. AOL repeats and realleges the allegations of paragraphs 1 through 92 of the Complaint.

94. The computers and computer system that comprise AOL’s e-mail system are the personal property of AOL.

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

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

97. Under the common law of Virginia, Defendants’ conduct constitutes trespass to AOL’s chattels.

98. As a result of Defendants’ trespass to 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 trespass, thereby causing AOL continuing and irreparable damage.

99. Defendants’ acts of trespass 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.

100. AOL repeats and realleges the allegations of paragraphs 1 through 99 of the Complaint.

101. On information and belief, Defendants have conspired and combined with third parties to send unauthorized bulk e-mails to and through AOL’s computers and computer system to AOL members, using false pretenses for the purpose of concealing from AOL the source and actual quantity of messages sent, and causing damage by impairing the operation of AOL’s computers and computer systems and impairing AOL’s provision of e-mail services to its members in violation of the Computer Fraud and Abuse Act.

102. On information and belief, Defendants have conspired and combined with third parties to send unauthorized bulk e-mails to and through AOL’s computers and computer system to AOL members, wrongfully exercising dominion over AOL’s computers and computer system, and depriving AOL and its members of the legitimate use of this commercially valuable system, and thereby committing trespass to chattels under Virginia common law.

103. On information and belief, Defendants have conspired and combined with third parties to transmit unsolicited commercial e-mail messages to and through AOL’s computers and computer system located in the Commonwealth of Virginia, using false pretenses for the purposes of concealing from AOL the source and actual quantity of messages sent, and obtaining access to and use of AOL’s computers and computer system with the intent to obtain property and computer services in violation of the Virginia Computer Crimes Act.

104. The effectuation of these conspiracies through the transmission by Defendants’ co-conspirators of unauthorized bulk e-mail to and through AOL’s computers and computer system has damaged AOL and its protected computer systems by impairing the integrity and/or availability of data, programs, systems, and/or information, and has damaged AOL’s business relations, reputation, and goodwill among its members.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff AOL requests entry of judgment in its favor and against Defendants:

a) Granting preliminary and permanent injunctive relief against Defendants and all persons acting in concert or participation with them, enjoining them from:

(1) Acquiring or compiling AOL member addresses for the purpose of transmitting unsolicited e-mail to those AOL members or engaging in any other actions that result in the receipt of any unwanted mail by AOL and its members;

(2) Sending any unsolicited e-mail to AOL or its members or engaging in any other actions that result in the receipt of any unwanted mail by AOL and its members;

(3) Sending any e-mail to AOL or its members bearing any false, fraudulent, anonymous, inactive, deceptive, or invalid header 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) Using any AOL-registered trademark, service mark, registered domain name, trade dress, or other symbol or representation, in their e-mail transmissions, domain names or Web sites, or in any other way that falsely indicates that AOL has endorsed or approved Defendants’ products or services, that AOL is affiliated with or connected in any way to Defendants’ businesses, or that any e-mail from Defendants originated from, or was transmitted through or by, AOL or any of its members;

b) Awarding AOL compensatory damages, in an amount to be proven at trial, caused by Defendants’ violation of the Lanham Act, the Computer Fraud and Abuse Act, the Virginia Computer Crimes Act, and Virginia common law;

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

d) Awarding AOL and its attorneys its costs and attorneys’ fees in prosecuting this action; and

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

Dated: , 1998

By: ________________________________

Of Counsel

LATHAM & WATKINS
Everett C. Johnson, Jr.
Richard P. Bress
Jon L. Praed (VSB #40678)
Elizabeth T. Carlson
Matthew R. Lewis
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004-2505
(202) 637-2200

AMERICA ONLINE, INC.
Randall Boe (VSB# 27951)
Charles Curran
22000 AOL Way
Dulles, Virginia 20166-9323
(703) 265-3750