The U.S. Dist. Court in Washington State has dismissed a CAN-SPAM Act case on the basis that the plaintiff suffered damages that were more like those typically experienced by consumers, rather than those experienced by ISP's.  At issue in Gordon v. Virtumundo was whether the plaintiff was an "internet access service" that was "adversely affected" by the subject spam.  Noting that the plaintiff had not suffered the ISP or IAS specific types of burdens described by Congress (such as harm related to bandwidth, hardware, Internet connectivity, network integrity, overhead costs, fees, staffing and equipment costs), the court concluded that although the statutory definition of an IAS is very broad, the nuisance/consumer type damages alleged were not the type required to be suffered in order to have standing under CAN-SPAM. 

According to the opinion, the limited private action under CAN-SPAM is to provide a remedy to true ISP's that have to hire extra resources, provide more bandwidth, and generally incur other direct damages as a result of the volume of spam they handle, not to provide consumers with a cause of action.  The decision also held that the state law claims in the case were pre-empted.   The case is James S. Gordon et al. v. Virtumundo, Inc., et. al., Case No. 06-0204-JCC.

Photo courtesy of Robyn Lee under Creative Commons.

Just in case you didn't know, the International Trademark Association (INTA) is right in the middle of its Annual Meeting, which this year is being hosted in Chicago. There are oodles of good programs dealing with various aspects of trademarks, branding, and the issues that arise with them in the online marketing context.  One session focused entirely on online resources that are useful when investigating domain names and domain name holders, whether to clear domains for your own use, or track down the bad guys who are wreaking havoc with you by using domains similar or identical to your trademarks and tradenames.  Here are some of the sites mentioned by the speakers (you will want to bookmark these, or at least a link to this post!):

Alexa.com provides current and historic traffic volume data on internet sites, and allows you to compare the traffic between competing sites, which is useful in a number of contexts.

Archive.org is where you can find the "Way Back Machine", which allows you to look and see how long a site has been around, and track changes that have been made to the site over time.

BetterWhoIs.com is a comprehensive, easy to use clearinghouse for domain name WHOIS information, and is a favorite with the presenters.

Domain Tools was said to provides lots of advanced features for finding information about domains, and domain name holders, some of which is free, and some of which comes with a small fee.  For example, for a fee of about $150 per year, you can evidently access Domain Tools archive of WHOIS information, which provides a chain of title of sorts for domain names.   It also has a reverse IP search available, and typo generator, that assists in identifying domain typos on your domain.

Geektools.com provides a set of technical resources for network engineers and system administrators, which  includes whois and traceroute.

Nation Arbitration Forum provides an easy to search database of their UDRP decisions which makes it very simple to see if there have been any arbitrations involving a particular domain or party.

WIPO also provides a searchable database of its UDRP decisions, but it is not quite as user friendly.

SnapNames was identified as a favorite resource for back ordering domain names.  It is free to back-order a domain, and if it is "caught" by SnapNames, a fee of about $65 is due at that time.  Small price to pay for the benefit of eliminating potential problems with domains of interest.

SamSpade.org  is a freeware integrated network query tool for tracking down spam.

There was also an interesting discussion of the problems posed by the anonymous domain hosting services that are popping up everywhere.  Domains by Proxy was mentioned specifically as one of the more popular services. A good practice pointer - when sending out cease and desist letters to these domains, the letters should go to Domains by Proxy (or the other anonymizing registrant), because THEY ARE THE REGISTRANT and owner of the domain.  That is the way they set up their business model. They will likely respond by saying they are not the real owner of the domain, etc., but the word from the presenters was that if you persist, you can expect Domains by Proxy to respond fairly quickly by posting the actual registration information in the WHOIS record for that domain.

The New York AG's office has entered into separate settlement agreements with these companies finding that they had engaged in deceptive business practices by using adware without consumer's consent.  The AG had filed suit against DirectRevenue LLC earlier, and DirectRevenue evidently provided the adware service to these companies.  One exerpt from the settlement agreements:

Direct Revenue installed adware programs onto millions of computers worldwide that delivered to users surfing the Internet a steady stream of advertisements for Direct Revenue's clients, such as Priceline. In selecting which ads to show, Direct Revenue programs also monitored the websites visited by users, along with data typed into web forms. Direct Revenue installed its adware programs on consumers' computers without adequate notice or the consent of consumers. Furthermore, Direct Revenue software was difficult to remove and also surreptitiously installed other programs and updates onto desktops already running its adware.

The Priceline Agreement goes on to state that the AG "finds that, by using Direct Revenue's adware programs to advertise its products and services on the Internet, Priceline has engaged in deceptive

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