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America Online v. LCGM, Inc., et al.

Plaintiff America Online Inc. ("AOL") is an Internet Service Provider that owns the federally registered trademark "AOL." Defendants LCGM, Inc. ("LCGM") and Web Promo operate a series of pornographic Internet web sites. The individual defendants are principals of these entities.

Between June 1997 to January 1998, defendants sent approximately 92 million unsolicited spam e-mails to AOL subscribers advertising their pornographic web sites. Each e-mail contained a forged header, which falsely indicated that the spam was sent from an AOL account holder utilizing AOL computers. Defendants identified their spam targets by harvesting e-mail addresses of AOL subscribers from AOL chat rooms. To accomplish this, defendants became AOL subscribers, and used extractor programs to record the e-mail addresses of participants in AOL online chats. These activities violated the Terms of Service governing AOL's subscribers use of AOL and generated numerous complaints.

After sending defendants two cease and desist letters, AOL commenced suit, charging that defendants' activities constituted false designation of origin in violation of the Lanham Act, dilution, violations of the Computer Fraud Act and the Virginia Computer Crimes Act, and trespass to chattels. The court agreed, and on AOL's motion for summary judgment held defendants liable on each of these claims. The court awarded plaintiff injunctive relief, enjoining defendants from continuing to engage in this conduct. Left for another day was a determination of the appropriate amount of damages to be awarded plaintiff.

The court held that by forging the headers of their spam e-mail so as to indicate that they came from an "aol.com" e-mail address, defendants had falsely designated the origin of their spam in violation of the Lanham Act, 15 U.S.C. section 1125(a)(1). Said the court:

[D]efendants clearly used the "aol.com" designation, incorporating the registered trademark and service mark AOL in their e-mail headers. ... The recipient of such a message would be led to conclude the sender was an AOL member or AOL, the Internet Service Provider. Indeed, plaintiff alleges that this destination did cause such confusion among many AOL members, who believed that AOL sponsored and authorized defendants' bulk e-mailing practices and pornographic web sites.

The court further held that the sending of this spam constituted a violation of the Federal Trademark Dilution Act of 1995. Dilution occurred because AOL's mark was tarnished as a result of its association with the transmission of spam that advertised pornographic materials.

Defendants' actions were also found to violate the Computer Fraud and Abuse Act. 18 U.S.C. section 1030 (a)(2)(c) prohibits individuals from "intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtaining information from any protected computer, if the conduct involved an interstate or foreign communication." Defendants' acts of utilizing extractor programs to obtain the e-mail addresses of participants in AOL chat rooms violated AOL's Terms of Service and hence were unauthorized. Because defendants accessed plaintiff's system without authorization to obtain these e-mail addresses, the court found that defendant had run afoul of the Computer Fraud and Abuse Act.

The court further found that the unauthorized sending of spam to plaintiff's computers violated 18 U.S.C. section 1030 (a)(5)(C), because by so doing defendants were "intentionally access[ing] a protected computer without authorization, and as a result of such conduct, caus[ing] damage." Again, this conduct was deemed unauthorized because it ran afoul of AOL's Terms of Service.

Lastly, as set forth above, defendants' conduct was held to violate both the Virginia Computer Crimes Act, Va. Code section 18,2-152.3(3), as well as to constitute a trespass to chattels under Virginia common law.

The court issued an injunction, enjoining defendants from continuing to send unsolicited spam, or harvest AOL subscriber e-mail addresses. Because issues of fact existed, however, it left for another day the determination of the appropriate amount of damages to award plaintiff.