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Spamming and Spoofing

Typhoon, Inc. v. Kentech Enterprises, United States District Court for the Central District of California, Docket Number CV 97-6270

Summary

In this case, the plaintiff, a Japanese ISP, filed suit against the defendants after the defendants, on more than one occasion, allegedly hacked their way into the plaintiff’s system and then used the plaintiff’s servers to send out thousands of pieces of spam. The case was resolved with the entry of a permanent injunction along with an agreement by one defendant to pay the plaintiff $5,000 in damages and provide it with deposition testimony.

Analysis

Typhoon is a Japan-based ISP in existence since 1994 which registered the domain name “typhoon.co.jp” with the Japan Network Information Center in November 1994. Shortly thereafter, Typhoon began advertising its services in the “Toyko Journal” and on the Internet. Beginning in December 1995, Typhoon began using its mark and domain name in commerce.

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On March 27, 1997, the defendants or an individual acting on their behalf hacked in to Typhoon’s mail server some 648 times and sent approximately 13,000 pieces of spam to AOL users. Over 30 of these messages bounced back to Typhoon as undeliverable. Typhoon’s server attempted to return the messages to the sender via the return address. Since that address was not valid, the messages were forwarded to Typhoon’s account administrator. The bounced back messages advertised pagers and paging services offered by one of the defendants and listed Kentech and Kenneth Techak as sales agents.

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On March 28, 1997, Typhoon’s system was again accessed 1,172 times resulting in 24,000 spam messages again advertising pagers and paging services from Kentech and Paging America. Typhoon reacted to these attacks by installing spam filtering software in April 1997. In the months that followed, that software blocked some 5,000 attempts to access Typhoon’s mail server.

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Finally, on May 18, 1997, Typhoon’s mail server received some 2,000 “bounced” messages containing the address “8948576@typhoon.co.jp,” a nonexistent address at Typhoon which thus caused those messages to bounce to Typhoon’s administrator. Upon further investigation, Typhoon discovered that the bounced messages were advertisements for Paging America and Kentech and that the “reply to” address was “cindy@surf-city-usa.com.” Kenneth Techak’s spouse’s first name is Cindy and “surf-city-usa.com” is a domain name registered to Kentech.

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As a result of these incidents, Typhoon installed spam filtering software and spent several days sorting the bounced spam from other legitimate e-mail in its administrative account.

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Typhoon sued, raising various legal theories. Typhoon claimed that Kentech’s unauthorized access and use of its equipment to send spam was a violation of the Electronic Communications Privacy Act, 18 U.S.C. §2701 which prevented authorized users from accessing Typhoon’s services and receiving their stored e-mail. Typhoon alleged that the defendants’ “spoofing” of the Typhoon domain name as the spam return address was false designation and false description under provisions of the federal Lanham act as it was likely to create the impression among the general public that the spam solicitations were sent with Typhoon’s approval. Typhoon also set forth claims of misappropriation, both as to the use of Typhoon’s equipment and facilities and its domain name, as well as common laws claims of libel, trespass and unjust enrichment.

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In September 1997, a consent judgment and permanent injunction were entered against Kentech, Kenneth Techak and Cindy Techak. The injunction permanently bars those defendants from any authorized access to Typhoon’s system, either directly or through an existing account holder, or placing the word “Typhoon” in the return e-mail address of any e-mail sent by the defendants. In addition, Kenneth Techak agreed to pay Typhoon $5,000 in damages and to provide deposition testimony and cooperate with Typhoon in prosecuting its claims against Paging America and its principals.

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