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Spamming and Spoofing

Bigfoot Partners, L.P. v. Cyber Promotions and Sanford Wallace, United States District Court for the Southern District of New York, Civil Action Number 97 CIV 7397.

Summary

Another in the line of cases successfully brought against Cyber Promotions as a result of its spamming and spoofing practices. The case settled just weeks before Cyber Promotions was put out of business by the Earthlink lawsuit.

Analysis

In October 1997, Bigfoot Partners (“Bigfoot”), a New York ISP with a focus on providing personalized e-mail services to its over 500,000 e-mail account holders, filed a fourteen count complaint against Cyber Promotions and Sanford Wallace.

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Bigfoot alleged that beginning in January 1997, its e-mail accounts holders began to receive spam from the defendants. At its peak, Bigfoot processed approximately 2,000 pieces of spam per day and continued at or near that pace for several months. The spam contained a spoofed return address which used the “bigfoot.com” domain name or stale or fictitious Bigfoot e-mail member addresses. According to the complaint, the defendant’s actions damaged the Bigfoot name, had a negative effect on Bigfoot’s ability to provide service to its customers and caused all e-mail with Bigfoot’s domain name to be blocked for a period of time by fifteen different ISPs.

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Bigfoot’s complaint included counts of trespass to chattel, fraud, libel, misappropriation, infringement, dilution, false designation, violations of the Electronic Communications Act, misrepresentation and conversion. As relief, Bigfoot requested a permanent injunction and at least $1,000,000 in damages.

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In March 1998, just weeks before the Earthlinks settlement which put Cyber Promotions out of business, the parties entered into a consent order which dismissed all counts of the complaint and permanently enjoined the defendants from using Bigfoot’s domain name in its spam or its spam creating software packages, precluded the defendants from sending spam to any e-mail address routed through Bigfoot, and provided that if the order was subsequently violated Bigfoot was entitled to recover $10,000 a day in liquidated damages.



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