Hotmail v. Van$ Money Pie,
47 U.S.P.Q.2d (BNA) 1020, 1998 US Dist. LEXIS 10729, 1998 WL 388389
(N.D. Cal. Apr. 16, 1998).
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
HOTMAIL CORPORATION, Plaintiff,
v.
VAN$ MONEY PIE INC.; ALS Enterprises, Inc.; LCGM, Inc.;
Christopher Moss d/b/a
the Genesis Network, Inc.; Claremont Holdings Ltd.; Consumer Connections;
Palmer & Associates; and Financial Research Group; and Darlene
Snow d/b/a
Visionary Web Creations and/or d/b/a Maximum Impact Marketing, Defendants
No. C-98 JW PVT ENE, C 98-20064 JW
April 16, 1998
Nicole A. Wong, Hosie, Wes, Sacks & Brelsford, LLP, Menlo Park,
CA, for Plaintiff.
William R. Mitchell, Tustin, CA, LCGM, Madison Heights, MI, Palmer &
Associates, San Diego, CA, Financial Research Group, El Cajon, CA, James
Polyzois, Detroit, MI, Darlene Snow, Mission Viejo, CA, for Defendants.
ORDER GRANTING PRELIMINARY INJUNCTION
WARE, J.
THIS MATTER was submitted on the papers by the Court on the Motion of
plaintiff Hotmail Corporation ("Hotmail") for Preliminary Injunction to
enjoin defendants ALS Enterprises, Inc. ("ALS"); LCGM, Inc. ("LCGM"); Christopher
Moss d/b/a Genesis Network ("Moss"); Palmer & Associates ("Palmer");
Financial Research Group ("Financial") and Darlene Snow d/b/a Visionary
Web Creations and/or d/b/a Maximum Impact Marketing ("Snow") from infringing
Hotmail's HOTMAIL trade name and service mark, diluting this mark, engaging
in acts of unfair competition, violating the Computer Fraud and Abuse Act,
breaching a contract, and violating California law. 15 U.S.C. §§
1125(a) & (c); 18 U.S.C. § 1030; Cal. Bus. & Prof.Code §§
14330, 17200; Cal. Civ.Code §§ 1709-10; and 3420-22. Having reviewed
the entire court record pertaining to this Motion, and having considered
the evidence and argument of counsel in support of Hotmail's Motion, the
Court enters the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. Plaintiff Hotmail is a Silicon Valley company that provides free
electronic mail ("e-mail") on the World Wide Web. Hotmail's online services
allow its over ten million registered subscribers to exchange e-mail messages
over the Internet with any other e-mail user who has an Internet e-mail
address throughout the world. Every e-mail sent by a Hotmail subscriber
automatically displays a header depicting Hotmail's domain name "hotmail.com"
and a footer depicting Hotmail's "signature" at the bottom of the e-mail
which reads "Get Your Private, Free Email at http://www.hotmail.com." Every
e-mail received by a Hotmail subscriber also automatically displays a header
depicting Hotmail's domain name. Thus, plaintiff's HOTMAIL mark--contained
within its domain name and signature--appears on millions of e-mails transmitted
worldwide daily.
2. In or about 1996, Hotmail developed the mark HOTMAIL and obtained
the Internet domain name "hotmail.com" which incorporates its mark. Hotmail
is the sole and exclusive holder of that domain name.
3. In or about 1996, Hotmail began using its HOTMAIL mark in various
forms and styles, continuously in commerce in association with its online
services as a means of identifying and distinguishing Hotmail's online
services from those of others. Thus Hotmail's mark has appeared in the
headers and footers of e-mail sent from and received by Hotmail subscribers,
on Hotmail's homepage and on nearly every page of its Website, on letterhead
and envelopes, on business cards, in promotional materials and in press
releases.
4. Hotmail has spent approximately $10 million marketing, promoting,
and distributing its services in association with its HOTMAIL mark. Hotmail
does not authorize any other e-mail service provider to use its HOTMAIL
mark, or Hotmail's domain name or signature.
5. "Spam" is unsolicited commercial bulk e-mail akin to "junk mail"
sent through the postal mail. The transmission of spam is a practice widely
condemned in the Internet Community and is of significant concern to Hotmail.
6. Hotmail has invested substantial time and money in efforts to disassociate
itself from spam and to protect e-mail users worldwide from receiving spam
associated in any way with Hotmail.
7. To become a Hotmail subscriber, one must agree to abide by a Service
Agreement ("Terms of Service") which specifically prohibits subscribers
from using Hotmail's services to send unsolicited commercial bulk e-mail
or "spam," or to send obscene or pornographic messages. Hotmail can terminate
the account of any Hotmail subscriber who violates the Terms of Service.
8. In or about the Fall of 1997, Hotmail learned that defendants were
sending "spam" e-mails to thousands of Internet e-mail users, which were
intentionally falsified in that they contained return addresses bearing
Hotmail account return addresses including Hotmail's domain name and thus
its mark, when in fact such messages did not originate from Hotmail or
a Hotmail account. Such spam messages advertised pornography, bulk e-mailing
software, and "get-rich-quick" schemes, among other things.
9. In addition, Hotmail learned that defendants had created a number
of Hotmail accounts for the specific purpose of facilitating their spamming
operations. Such accounts were used to collect responses to defendants'
e-mails and "bounced back" messages in what amounted to a "drop box" whose
contents were never opened, read or responded to. It was these Hotmail
accounts that were used as return addresses by defendants in lieu of defendants'
actual return addresses when defendants sent their spam e-mail.
10. As a result of the falsified return addresses described above, Hotmail
was inundated with hundreds of thousands of misdirected responses to defendants'
spam, including complaints from Hotmail subscribers regarding the spam
and "bounced back" e-mails which had been sent by defendants to nonexistent
or incorrect e-mail addresses. This overwhelming number of e-mails took
up a substantial amount of Hotmail's finite computer space, threatened
to delay and otherwise adversely affect Hotmail's subscribers in sending
and receiving e-mail, resulted in significant costs to Hotmail in terms
of increased personnel necessary to sort and respond to the misdirected
complaints, and damaged Hotmail's reputation and goodwill.
11. In particular, Hotmail discovered a spam e-mail message advertising
pornographic material that was sent by ALS. While this spam originated
from ALS and was transmitted through an E-mail Provider other than Hotmail,
ALS falsely designated a real Hotmail e-mail address as the point of origin.
The e-mail address chosen for this purpose was "geri748@hotmail.com."
12. Hotmail also discovered a number of spam e-mail messages advertising
pornographic material that were sent by LCGM. While these spam e-mails
originated from LCGM and were transmitted through an E-mail Provider other
than Hotmail, LCGM falsely designated a number of real Hotmail e-mail address
as the points of origin. The e-mail addresses chosen for this purpose were
"becky167 @hotmail.com;" "deena54@hotmail.com;" "marisa104@hotmail.com;"
"shelly345 @hotmail.com;" "sonnie67@hotmail.com;" "ashley_113@hotmail.com;"
"grace44 @hotmail.com;" "jess_59@hotmail.com;" "kristina17@hotmail.com;"
"nellie24 @hotmail.com;" and, "tyrona56@hotmail.com."
13. Hotmail also discovered a spam e-mail message advertising pornographic
material that was sent by Moss. While this spam originated from Moss and
was transmitted through an E-mail Provider other than Hotmail, Moss falsely
designated a real Hotmail e-mail address as the point of origin. The e-
mail address chosen for this purpose was "rebecca_h19@hotmail.com."
14. Hotmail also discovered a spam e-mail message advertising a cable
descrambler kit that was sent by Palmer. While this spam originated from
Palmer and was transmitted through an E-mail Provider other than Hotmail,
Palmer falsely designated two real Hotmail e-mail addresses as the points
of origin. The e-mail addresses chosen for this purpose were "kelCA@hotmail.com"
and "angiCA@hotmail.com."
15. Hotmail also discovered a spam e-mail message advertising a service
that matches people seeking cash grants that was sent by Financial. While
this spam originated from Financial and was transmitted through an E-mail
Provider other than Hotmail, Financial falsely designated a real Hotmail
e-mail address as the point of origin. The e-mail address chosen for this
purpose was "order_desk66 @hotmail.com."
16. Hotmail also discovered a number of spam e-mail messages advertising
pornography that were sent by Snow. While this spam originated from Snow
and was transmitted through an E-mail Provider other than Hotmail, Snow
falsely designated several real Hotmail e-mail address as the point of
origin. The e-mail addresses chosen for this purpose were "bettyharris123@hotmail.com;"
"annharris123@hotmail.com;" "cindyharris123@hotmail.com;" "wilmasimpson
@hotmail.com;" "rw3570@hotmail.com;" "rw3560@hotmail.com;" and, "jw2244
@hotmail.com."
CONCLUSIONS OF LAW
Jurisdiction and Venue
17. This Court has subject matter jurisdiction over this action pursuant
to 28 U.S.C. § 1331. This Court has supplemental jurisdiction over
the state law claims under 28 U.S.C. § 1367. This Court has personal
jurisdiction over the defendants ALS, LCGM, Moss, Palmer, Financial, and
Snow, who have engaged in business activities in or directed in California.
18. Venue is proper in this district pursuant to 28 U.S.C. § 1391
because a substantial portion of the events giving rise to the claims pled
herein occurred in this judicial district and defendants do business in
this judicial district.
Standard For Granting Preliminary Injunction
19. The standard for preliminary injunction relief in trademark infringement
cases and related actions is well-settled. Hotmail must show either: (a)
a likelihood of success on the merits and the possibility of irreparable
injury; or (b) the existence of serious questions going to the merits and
the balance of hardships tips in Hotmail's favor. Apple Computer. Inc.
v. Formula Int'l, Inc., 725 F.2d 521, 523 (9th Cir.1984).
Plaintiff's Legal Claims
20. Hotmail seeks preliminary injunctive relief in this Motion for false
designations of origin, federal and state dilution, violation of the Computer
Fraud and Abuse Act, state and common law unfair competition, breach of
contract, fraud and misrepresentation, and trespass to chattel, pursuant
to 15 U.S.C. §§ 1116, 1125(a) & (c); 18 U.S.C. § 1030;
Cal. Bus. & Prof.Code §§ 14330, 17203; and Cal Civ.Code §§
1709-10.
Plaintiff's Likelihood Of Success On Its Claims
False Designation Of Origin And Unfair Competition
21. The core element of a cause of action for false designation of origin
under 15 U.S.C. § 1125(a) as well as other unfair competition is "likelihood
of confusion, i.e., whether the similarity of the marks is likely to confuse
customers about the source of the products." E. & J. Gallo Winery v.
Gallo Cattle Co., 967 F.2d 1280, 1290 (9th Cir.1992); Academy of Motion
Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d
1446, 1454 (9th Cir.1991).
22. Courts will consider the following factors, among others, as relevant
to a determination of the likelihood of confusion for claims under 15 U.S.C.
§ 1125(a) and related other unfair competition claims: (a) strength
or weakness of plaintiff's mark; (b) the degree of similarity with defendant's
mark; (c) class of goods; (d) marketing channels used; (e) evidence of
actual confusion; and (f) intent of the defendant. Americana Trading Inc.
v. Russ Berrie & Co., 966 F.2d 1284, 1287 (9th Cir.1992). However,
there is not a mandated test for likelihood of confusion applied by the
courts in this Circuit, and the appropriate time for full consideration
of all relevant factors is when the merits of the case are tried. Apple
Computer, 725 F.2d at 526.
23. The majority of these factors supports a finding that Hotmail is
likely to succeed on the merits of its claims that defendants' use of the
HOTMAIL mark is likely to cause consumer confusion or mistake as to the
origin, sponsorship, or approval of defendants' spam e-mails and spam e-mail
business, and that there are at least serious questions going to the merits
of plaintiff's claims.
24. Plaintiff's mark is strong. The "strength" of a mark depends in
part on whether it is arbitrary or fanciful, suggestive, merely descriptive,
or generic. Chronicle Pub. Co. v. Chronicle Publications, Inc., 733 F.Supp.
1371, 1375 (N.D.Cal.1989). In addition, a company's "extensive advertising,
length of time in business, public recognition, and uniqueness" all strengthen
its trademarks. Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175,
1179 (9th Cir.1988). While the second part of the mark--"mail"--may be
suggestive by conveying some aspect of the e-mail process, the mark as
a whole is arbitrary and fanciful because it neither describes nor suggests
that Hotmail is a provider of electronic mail as a Web-based service on
the Internet. Moreover, plaintiff has spent substantial sums of money to
advertise and market its services in association with the mark and has
extensively featured the mark in its promotions.
25. Defendants' "mark" is not only confusingly similar to plaintiff's
mark, it is identical to it. A comparison of defendants' and plaintiff's
uses shows such striking similarity that a jury could not help but find
that defendants' use is confusing. Indeed, there has been actual confusion
among consumers regarding the marks. This factor alone may be determinative.
See E. Remy Martin & Co., S.A. v. Shaw-Ross International Imports,
Inc., 756 F.2d 1525, 1529, 1530 (11th Cir.1985) (it is "well-settled" that
"evidence of actual confusion is not necessary to a finding of likelihood
of confusion, although it is the best such evidence;" indeed, "a sufficiently
strong showing of likelihood of confusion may be itself constitute a showing
of substantial likelihood of prevailing on the merits and/or a substantial
threat of irreparable harm"); World Carpets, Inc. v. Dick Littrell's New
World Carpets, 438 F.2d 482, 489 (5th Cir.1971) ( "[t]here can be no more
positive or substantial proof of likelihood of confusion than proof of
actual confusion").
26. The class of goods and services distributed by defendants--e-mails--
which bear a mark identical to plaintiff's, are the same as the class of
goods and services distributed by plaintiff--e-mails.
27. The marketing channels through which the parties sell their goods
and services are the same--via e-mail over the Internet. Their consumer
audience is likewise the same. Moreover, because e-mail is specifically
designed for the rapid exchange of information, consumers are unlikely
to exercise a great deal of care in distinguishing between marks on e-mails
they receive.
28. Defendants' intent further supports possible confusion. Levi Strauss
& Co. v. Blue Bell, 632 F.2d 817, 822 (9th Cir.1981); Pacific Telesis
Group v. International Telesis Communications, 994 F.2d 1364, 1369 (9th
Cir.1993). Here, the evidence supports an inference that defendants intended
to emulate plaintiff's trademark, given their knowing falsification of
e-mail return addresses, their fraudulent creation of Hotmail mailboxes,
as well as their attempts to circumvent plaintiff's efforts to prevent
its subscribers from receiving spam.
Dilution
29. The core elements of a cause of action under the federal dilution
statute are plaintiff's ownership of a famous mark and dilution of the
distinctive quality of plaintiff's mark, regardless of whether consumers
are confused about the parties' goods. 15 U.S.C. § 1125(c)(1). Under
the California dilution statute as well, actual injury or likelihood of
confusion need not be shown; plaintiff need only show its business reputation
is likely to be injured or the distinctive value of its mark is likely
to be diluted. Cal. Bus. & Prof.Code § 14330; Academy, 944 F.2d
at 1457.
30. In determining whether a mark is distinctive and famous so as to
support a claim for federal dilution, the Court has considered the following
factors; (a) the degree of inherent or acquired distinctiveness of the
mark; (b) the duration and extent of use of the mark in connection with
the goods or services with which the mark is used; (c) the duration and
extent of advertising and publicity of the mark; (d) the geographical extent
of the trading area in which the mark is used; (e) the channels of trade
for the goods or services with which the mark is used; (f) the degree of
recognition of the mark in the trading areas and channels of trade used
by the mark's owner and the person against whom the injunction is sought;
and (g) the nature and extent of use of the same or similar marks by third
parties. 15 U.S.C. § 1125(c)(1).
31. Under California's anti-dilution statute, the plaintiff need only
show the "[l]ikelhihood of injury to business reputation or of dilution
of the distinctive quality of a mark." Cal. Bus. & Prof.Code §
14330.
32. Here, the evidence supports a finding that plaintiff will likely
prevail on its federal and state dilution claims and that there are at
least serious questions going to the merits of these claims. First, there
is sufficient evidence to lead to a finding that plaintiff's trademark
is "famous" within the meaning of 15 U.S.C. § 1125(c)(1) and also
that it is entitled to state dilution protection. Plaintiff's mark is distinctive,
has been advertised and used extensively both nationally and internationally
in connection with plaintiff's services, and has established considerable
consumer recognition. Moreover, the use of identical marks by defendants
who are sending e-mails to thousands of e-mail users across the country
and the world through identical trade channels threatens to dilute the
distinctiveness of plaintiff's trademark and threatens to harm plaintiff's
business reputation.
Violation Of Computer Fraud And Abuse Act
33. The Computer Fraud and Abuse Act prohibits any person from knowingly
causing the transmission of information which intentionally causes damage,
without authorization, to a protected computer. 18 U.S.C. § 1030.
34. The evidence supports a finding that plaintiff will likely prevail
on its Computer Fraud and Abuse Act claim and that there are at least serious
questions going to the merits of this claim in that plaintiff has presented
evidence of the following: that defendants knowingly falsified return e-mail
addresses so that they included, in place of the actual sender's return
address, a number of Hotmail addresses; that such addresses were tied to
Hotmail accounts set up by defendants with the intention of collecting
never-to-be-read consumer complaints and "bounced back" e-mails; that
defendants knowingly caused this false information to be transmitted to
thousands of e-mail recipients; that defendants took this action knowing
such recipients would use the "reply to" feature to transmit numerous responses
to the fraudulently created Hotmail accounts, knowing thousands of messages
would be "bounced back" to Hotmail instead of to defendants, and knowing
that numerous recipients of defendants' spam would e-mail complaints to
Hotmail; that defendants took such actions knowing the risks caused thereby
to Hotmail's computer system and online services, which include risks that
Hotmail would be forced to withhold or delay the use of computer services
to its legitimate subscribers; that defendants' actions caused damage to
Hotmail; and that such actions were done by defendants without Hotmail's
authorization.
Breach Of Contract
35. The evidence supports a finding that plaintiff will likely prevail
on its breach of contract claim and that there are at least serious questions
going to the merits of this claim in that plaintiff has presented evidence
of the following: that defendants obtained a number of Hotmail mailboxes
and access to Hotmail's services; that in so doing defendants agreed to
abide by Hotmail's Terms of Service which prohibit using a Hotmail account
for purposes of sending spam and/or pornography; that defendants breached
their contract with Hotmail by using Hotmail's services to facilitate sending
spam and/or pornography; that Hotmail complied with the conditions of the
contract except those from which its performance was excused; and that
if defendants are not enjoined they will continue to create such accounts
in violation of the Terms of Service.
Fraud And Misrepresentation
36. The cause of action for fraud includes willfully deceiving another
with intent to induce him to alter his position to his injury or risk by
asserting, as a fact, that which is not true, by one who has no reasonable
ground for believing it to be true; or by suppressing a fact, by one who
is bound to disclose it, or who gives information of other facts which
are likely to mislead for want of communication of that fact; or by making
a promise without any intention of performing it. Civ.Code §§
1709-10.
37. The evidence supports a finding that plaintiff will likely prevail
on its fraud and misrepresentation claim and that there are at least serious
questions going to the merits of this claim in that plaintiff has presented
evidence of the following: that defendants fraudulently obtained a number
of Hotmail accounts, promising to abide by the Terms of Service without
any intention of doing so and suppressing the fact that such accounts were
created for the purpose of facilitating a spamming operation, and that
defendants' fraud and misrepresentation caused Hotmail to allow defendants
to create and use Hotmail's accounts to Hotmail's injury. In addition,
the evidence supports a finding that defendants' falsification of e-mails
to make it appear that such messages and the responses thereto were authorized
to be transmitted via Hotmail's computers and stored on Hotmail's computer
system--when defendants knew that sending such spam was unauthorized by
Hotmail--constitutes fraud and misrepresentation, and that Hotmail relied
on such misrepresentations to allow the e-mails to be transmitted over
Hotmail's services and to take up storage space on Hotmail's computers,
to Hotmail's injury.
Trespass To Chattel
38. "Trespass to chattel ... lies where an intentional interference
with the possession of personal property has proximately caused injury."
Thrify-Tel, Inc. v. Bezenek, 46 Cal.App.4th 1559, 1566, 54 Cal.Rptr.2d
468 (1996).
39. The evidence supports a finding that plaintiff will likely prevail
on its trespass to chattel claim and that there are serious questions going
to the merits of this claim in that plaintiff has presented evidence of
the following: that the computers, computer networks and computer services
that comprise Hotmail's e-mail system are the personal property of Hotmail;
that defendants obtained consent to create Hotmail accounts within the
limitations set forth in the Terms of Service: no spamming and no pornography;
that defendants intentionally trespassed on Hotmail's property by knowingly
and without authorization creating Hotmail accounts that were used for
purposes exceeding the limits of the Terms of Service; that defendants
trespassed on Hotmail's computer space by causing tens of thousands of
misdirected e-mail messages to be transmitted to Hotmail without Hotmail's
authorization, thereby filling up Hotmail's computer storage space and
threatening to damage Hotmail's ability to service its legitimate customers;
and that defendants' acts of trespass have damaged Hotmail in terms of
added costs for personnel to sort through and respond to the misdirected
e-mails, and in terms of harm to Hotmail's business reputation and goodwill.
Irreparable Harm To Plaintiff
40. In cases where trademark infringement is shown, irreparable harm
is presumed. Apple Computer, 725 F.2d at 525; Charles Schwab & Co.
v. Hibernia Bank, 665 F.Supp. 800, 812 (N.D.Cal.1987).
41. Plaintiff has suffered and, if defendants are not enjoined, will
continue to suffer irreparable harm from the distribution, promotion and
use of e-mails bearing plaintiff's mark--particularly spam e-mails, some
of which advertise pornography--because of the loss of goodwill and reputation
arising from customer confusion about the source of defendants' spam e-mails
and/or plaintiff's affiliation or sponsorship of them. This kind of harm
is not easily quantified and not adequately compensated with money damages.
Plaintiff thus has no adequate remedy at law.
Balance Of Hardships
42. The Court finds that the irreparable harm to plaintiff should injunctive
relief not be granted outweighs any injury to defendants resulting from
a temporary injunction. Plaintiff has introduced evidence that it has been
involved in extensive distribution and promotion of its online services
in association with its mark for years and has expended vast amounts of
time and money developing and promoting its mark. Plaintiff also is a service
mark owner entitled to avoid having its reputation and goodwill placed
in jeopardy. In contrast, if enjoined, defendants would not suffer harm
in that they would be free to continue advertising by means of e-mail so
long as they did not use Hotmail's mark or services to facilitate such
advertising. Thus, the balance of hardships strongly tips in favor of plaintiff.
Conclusion
43. The Court therefore concludes that plaintiff is entitled to a preliminary
injunction on the grounds that plaintiff is likely to succeed on the merits,
that there is a possibility of irreparable injury, that there are serious
questions going to the merits, and that the balance of hardships tips sharply
in plaintiff's favor. It is therefore,
ORDERED AND ADJUDGED:
That defendants ALS, LCGM, Moss, Palmer, Financial, and Snow, their
officers, agents, co-conspirators, servants, affiliates, employees, parent
and subsidiary corporations, attorneys and representatives, and all those
in privity or acting in concert with defendants are temporarily and preliminarily
enjoined and restrained during the pendency of this action from directly
or indirectly:
1. Using any images, designs, logos or marks which copy, imitate or
simulate Hotmail's HOTMAIL mark, and/or Hotmail's "hotmail.com" domain
name for any purpose, including but not limited to any advertisement, promotion,
sale or use of any products or services;
2. Performing any action or using any images, designs, logos or marks
that are likely to cause confusion, to cause mistake, to deceive, or to
otherwise mislead the trade or public into believing that Hotmail and defendants,
or any of them, are in any way connected, or that Hotmail sponsors defendants;
or that defendants, or any of them, are in any manner affiliated or associated
with or under the supervision or control of Hotmail, or that defendants
and Hotmail or Hotmail's services are associated in any way.
3. Using any images, designs, logos or marks or engaging in any other
conduct that creates a likelihood of injury to the business reputation
of Hotmail or a likelihood of misappropriation and/or dilution of Hotmail's
distinctive mark and the goodwill associated therewith;
4. Using any trade practices whatsoever, including those complained
of herein, which tend to unfairly compete with or injure Hotmail, its business
and/or the goodwill appertaining thereto;
5. Sending or transmitting, or directing, aiding, or conspiring with
others to send or transmit, electronic mail or messages bearing any false,
fraudulent, anonymous, inactive, deceptive, or invalid return information,
or containing the domain "hotmail.com," 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
or that would cause the e-mail return address to be that of anyone other
than the actual sender;
6. Using, or directing, aiding, or conspiring with others to use, Hotmail's
computers or computer networks in any manner in connection with the transmission
or transfer of any form of electronic information across the Internet,
including, but not limited to, creating any Hotmail e-mail account, or
becoming a Hotmail subscriber, for purposes other than those permitted
by Hotmail's Terms of Services, including but not limited to, for purposes
of participating in any way in sending spam e-mail or operating a spamming
business, or sending or advertising or promoting pornography and/or sending
e-mails for any commercial purpose.
7. Opening, creating, obtaining and/or using, or directing, aiding,
or conspiring with others to open, create, obtain and/or use, any Hotmail
account or mailbox;
8. Acquiring or compiling Hotmail member addresses for use in the transmission
of unsolicited promotional messages to those Hotmail members; and,
9. Sending or transmitting, or directing, aiding, or conspiring with
others to send or transmit, any unsolicited electronic mail message, or
any electronic communication of any kind, to or through Hotmail or its
members without prior written authorization.
IT IS FURTHER ORDERED AND ADJUDGED:
That plaintiff shall provide a bond in the amount of only $100.
