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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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Internet Access Service Providers LLC v. Real Networks, Inc.

Civil No. 05-040-S-EJL, 2005 WL 1244961 (D. Idaho, May 25, 2005)

The Court holds that the inclusion of allegedly false information in the body of an e-mail does not constitute a violation of either Sections 7704(a)(i) or (b)(A)(ii) of the CAN-SPAM Act, 15 U.S.C. §7701 et seq. and accordingly dismisses a complaint asserting claims alleging their violation.

Plaintiff Internet Access Service Providers LLC ("IAS") is, as its name implies, an Internet access service provider.  Defendant Real Networks, Inc., among other things, markets software applications known as Real Player, Real Audio and Real Jukebox which permit the user to view and/or listen to audio and digital media.

The Complaint alleged that Real Networks violated the CAN-SPAM Act by distributing unsolicited commercial electronic mail, known as "Spam."  More particularly, the Complaint alleged that e-mail sent by Real Networks falsely stated in the body of the e-mail that the recipient was "receiving this e-mail because you downloaded Real One, Real Player or Real Juke Box from and indicated a preference to receive products news, updates and special offers from Real Networks."

Real Networks moved to dismiss these claims, arguing that its conduct, as alleged, neither violated 15 U.S.C. §§7704(a)(i) or 7704(b)(i) (A)(ii), as alleged in the Complaint.  The Court agreed and dismissed the Complaint.

The Court held that Section 7704(a)(i) of the Act did not regulate the accuracy of content found in the body of an e-mail.  Rather, its prohibitions only applied to information found in an e-mail's header.  As the Complaint only attacked the accuracy of information found in the body of the e-mail, it did not allege a violation of these sections.

The Court also held that plaintiff had failed to allege facts sufficient to establish a violation of §7704(b)(i)(A)(ii), which prohibits sending e-mail to an addressee who's address was obtained using "automated means that generates possible electronic mail addresses by combining names, letters or numbers into numerous permutations."

The Court accordingly dismissed plaintiff's CAN-SPAM claims and declined to exercise pendent jurisdiction over the state law claims asserted in the Complaint.

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