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America Online filed suit June 14, 1996 against Cyber Promotions, who allegedly advertised an "AOL CLASSIFIED CO-OP SERVICE" and used bogus "aol.com" e-mail addresses to create the false impression that they were affiliated with AOL. AOL claims that Cyber Promotions began to deluge "customers with millions of unsolicited commercial e-mail messages, infuriating AOL members, resulting in member cancellations and imposing increased hardware and software expense on AOL." When AOL took steps to prevent Cyber from continuing this course of conduct, Cyber initiated litigation, claiming that it had a First Amendment right to conduct its business by means of AOL's proprietary online service.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

AMERICA ONLINE, INC.

Plaintiff,

CYBER PROMOTIONS, INC.,

Defendant.

Civ. Action No. 96-462

FIRST AMENDED COMPLAINT FOR SERVICE MARK AND TRADE NAME
INFRINGEMENT, SERVICE MARK AND TRADE NAME DILUTION, FALSE
DESIGNATION OF ORIGIN, FALSE ADVERTISING, UNFAIR COMPETITION,
MISAPPROPRIATION, CONVERSION, UNJUST ENRICHMENT AND
VIOLATIONS OF THE VIRGINIA CONSUMER PROTECTION ACT, THE
ELECTRONIC COMMUNICATIONS PRIVACY ACT, THE COMPUTER FRAUD
AND ABUSE ACT, AND THE VIRGINIA COMPUTER CRIMES ACT
JURISDICTION

1. This is an action for service mark and trade name infringement, service mark and trade
name dilution, false designation of origin, false advertising, violation of the Virginia
Consumer Protection Act, other acts of unfair competition, misappropriation, conversion
and unjust enrichment; and for violations of the Electronic Communications Privacy Act,
the Computer Fraud and Abuse Act, and the Virginia Computer Crimes Act arising under
the statutes of the United States (Trademark Act of 1946, 15 U.S.C. Secs. 1051 et. seq.,
18 U.S.C. Sec. 1030, and 18 U.S.C. Secs. 2701 et. seq.), the statutory law of the State of
Virginia (Va. Code Secs. 18.2-152.2 et. seq., and Secs. 59.1-196 et seq.), and the
common law.

2. This court has jurisdiction over the subject matter under Sec. 39 of the Trademark Act
of 1946, 15 U.S.C. Sec. 1121; the Judicial Code, 28 U.S.C. Secs. 1331, 1332, 1338, and
1367; and the doctrine of supplemental jurisdiction. The amount in controversy exceeds
the sum or value of $50,000, exclusive of interest or costs, and is between citizens of
different states. Venue is proper in this judicial district pursuant to 28 U.S.C. Sec.
1391(b) in that a substantial part of the events or omissions giving rise to the claims
occurred in and a substantial part of property that is the subject of the action is situated in
this judicial district.

THE PARTIES

3. Plaintiff America Online, Inc. ("AOL"), is a corporation organized and existing under
the laws of the State of Delaware with its principal place of business at 8619 Westwood
Center Drive, Vienna, Virginia 22181.

4. Upon information and belief, Defendant Cyber Promotions, Inc. ("Cyber") is a
corporation organized and existing under the laws of the Commonwealth of
Pennsylvania, with its principal place of business at 1255 Passmore Street, 1st Floor,
Philadelphia, Pennsylvania 19111. Cyber is doing business in and has caused tortious
injury in the Commonwealth of Virginia within this judicial district.

THE INTERNET

5. The acts complained of herein were committed by Cyber through use of the Internet.
Often called the"Information Superhighway", the Internet is a complex communications
network that links private and public computer networks, systems and individuals. It
consists of computers and computer databases connected primarily through telephone
lines, fiber optic cables and high speed dedicated leased lines. Some of the components of
the Internet are owned by governmental organizations. However, AOL is a proprietary,
content based online service. It owns computers and other devices which enable its
customers to obtain various services including Internet access services.

6. In many ways, the Internet resembles our highway transportation system. The phone
lines are similar to highways over which goods are transferred from one location to
another and the computer domain sites such as those operated by AOL are similar to
privately owned warehouses in which goods are stored and from which they are
disseminated to various destinations.

7. The Internet has become one of the most significant technological creations of this
century occupying a position that is potentially more important than telephones or
televisions among communications media. Once connected to the Internet, users can
obtain vast amounts of digitized data, including texts, audio, graphics and videos from
sources ranging from the archives of large government and academic institutions to any
of the Internet's millions of individual users.

8. Among the economic benefits provided by the Internet are new techniques for
marketing and selling goods and services. Many responsible businesses such as AOL
have invested vast sums of money in the computers and communications systems needed
to facilitate such transactions. AOL and others seek to recoup their investment by
charging fees to those who wish to gain access to their systems. Unfortunately, the
Internet also has provided irresistible opportunities for unscrupulous individuals and
corporations, such as Cyber and its founder. Instead of investing in its own equipment,
Cyber has used the systems of others to gain access to the Internet and to use it as a tool
to perpetrate fraud, to misappropriate intellectual property, to engage in unfair
competition, to invade the privacy of others, and to reap where it has not sown.

FACTS PERTAINING TO CYBER'S ACTS OF UNFAIR COMPETITION

9. AOL is the owner of numerous trademarks, service marks, and trade names, including
the well known trade names and service marks AMERICA ONLINE, AOL and
"aol.com". The name and mark AOL is often used as a short hand expression for the mark
AMERICA ONLINE. Similarly, the trade name, mark and domain name "aol.com" is
widely recognized as a short hand expression for AMERICA ONLINE.

10. Long prior to the acts complained of herein, and at least as early as 1989, AOL
adopted and began using the names and marks AMERICA ONLINE, AOL, and
"aol.com" in connection with a variety of online computer services. Since that time, AOL
has used these names and marks continuously and extensively in interstate commerce and
in the Commonwealth of Virginia, in connection with the advertising and sale of online
and Internet access services.

11. AOL's exclusive right to use the service marks and trade names AMERICA ONLINE
and AOL is evidenced by the fact that the United States Patent and Trademark Office has
issued federal registrations for these marks: Registration No. 1,618,148, issued October
16, 1990, and Registration No. 1,977,731 issued June 4, 1996, respectively. Both of these
registrations are in full force and effect, unrevoked, and uncancelled and the 1990
registration is incontestable. In addition, the registrations provide prima facie and
conclusive evidence of the validity and subsistence of the marks; AOL's ownership of and
exclusive right to use the marks in commerce without restriction or limitation; and
constructive notice of AOL's ownership pursuant to Sections 7, 22 and 33 of the
Trademark Act of 1946, 15 U.S.C. Secs. 1057, 1072 and 1115. Copies of the registrations
are attached hereto as Exhibit A.

12. AOL has invested substantial sums of money in developing and marketing the world's
largest and most successful computer online network, which provides online access to a
wide variety of information and services. AOL customers may use their personal
computers to gain access to numerous publications including current magazines,
newspapers, and reference works. In addition, AOL's online service contains material
relating to such topics as entertainment, news, sports, finance, computers, weather, travel,
education, games, and software. Using their AOL accounts, subscribers may make
purchases of a wide variety of products and services, secure travel reservations, place
classified ads, meet new people, and communicate by electronic mail ("e-mail") with
AOL subscribers and other persons with Internet addresses residing throughout the world.

13. At present there are more than 6,000,000 subscribers to AOL's online service. each of
which is authorized to use the AOL system for sending and receiving e-mail so long as
they abide by the Terms of Service and Rules of the Road promulgated by AOL.

14. The names and marks AMERICA ONLINE, AOL and "aol.com" have been and
continue to be widely publicized through substantial advertising in the State of Virginia
and throughout the United States. Many millions of dollars have been spent in connection
with such advertising which has been disseminated through network and cable television
programs, radio broadcasts, and in print media including newspapers and periodicals.
Sales of services under the names and marks AMERICA ONLINE, AOL and "aol.com"
have amounted to many millions of dollars. As a result, the general public has come to
associate these names and marks with services of a high and uniform quality.

15. Because of said substantial advertising expenditures and sales, AOL's names and
marks have become well-known and famous among members of the purchasing public as
distinctive indicators of the services offered by AOL.

16. Notwithstanding AOL's prior use of and rights in its names and marks AMERICA
ONLINE, AOL and "aol.com", Cyber has begun advertising and selling electronic
advertising services through the Internet, within this judicial district and in interstate
commerce under the names and marks AOL and "aol.com". In promoting its services,
Cyber has falsely represented that it is affiliated with, sponsored by, approved by or
endorsed by AOL. Among other things Cyber has transmitted messages containing
claims such as "Our brand new...AOL CLASSIFIED CO-OP SERVICE!" These
advertisements have been circulated by Cyber with a deliberate intent to deceive
customers into believing that Cyber's services are sponsored, approved, endorsed or
affiliated with AOL. Cyber has also included in its advertisements fraudulent Internet
addresses containing AOL's well known service mark and domain name "aol.com". A
sample advertisement used by Cyber is attached hereto as Exhibit B.

17. Cyber's use of names and marks similar to those owned by AOL, for services
identical to those offered by AOL or its related companies, is likely to cause and has
caused confusion among prospective purchasers.

18. Upon learning of Cyber's use of a confusingly similar name and mark, AOL contacted
Cyber and demanded that it discontinue such use.

19. Cyber refused to comply with AOL's demand and continued to offer and sell
electronic advertising services under the names and marks AOL and "aol.com". Thus,
Cyber traded on AOL's goodwill in a manner calculated to deceive and cause confusion
among prospective purchasers.

20. Cyber has engaged in said infringing use despite having full knowledge of AOL's
prior rights in its name and mark. Thus, Cyber has acted unlawfully, with a willful and
deliberate intent to cause confusion among the purchasing public and to injure AOL.

FACTS PERTAINING TO CYBER'S ACTS OF MISAPPROPRIATION,
CONVERSION AND UNJUST ENRICHMENT, AND VIOLATIONS OF THE
ELECTRONIC PRIVACY ACT, THE COMPUTER FRAUD AND ABUSE ACT, AND
THE VIRGINIA COMPUTER CRIMES ACT

21. AOL's e-mail system was created solely for the benefit of AOL customers who pay
prescribed fees and who agree to adhere to AOL's Terms of Service. The e-mail system is
operated through dedicated computers known as servers which store and route e-mail
messages for AOL's customers. All AOL customers are given a unique AOL address so
that they can send and receive on their personal computers both AOL e-mail and Internet
e-mail. These addresses consist of a name selected by the customer and AOL's service
mark and domain designation "aol.com", (e.g., "VWXYZ@aol.com"). Only AOL
customers are allowed to use the "aol.com" mark and domain name as a part of their
address.

22. Because AOL provides access to the Internet, AOL customers may communicate by
e-mail with any other person having an Internet address. However, persons using the
Internet do not have access to AOL's proprietary online system unless they first agree to
establish an AOL account and abide by AOL's Terms of Service.

23. Any mail that is sent through the Internet, or through AOL's e-mail system, to an
AOL address will be received by AOL's mail server. When AOL's mail server receives
such e-mail, it automatically attempts to route it to the AOL subscriber for whom it is
intended. If e-mail bears an incorrect AOL address (because no such addressee ever
existed, or because the addressee is no longer an AOL subscriber), the mail is bounced
back to the sender's return address. If the sender's address is not valid, the mail is routed
to a server known as the "postmaster workstation". This server performs a wide variety of
functions vital to the efficient operation of the AOL system. Among other things, it
enables the AOL system to interface with the Internet so e-mail can be sent and received.

24. The AOL mail server and postmaster workstation have a finite capacity designed to
accommodate the demands imposed by AOL's customers. They are not designed to
accommodate, and they are vulnerable to disruption by, indiscriminate mass mailings
from irresponsible Internet pirates such as Cyber.

25. AOL's Terms of Service and Rules of the Road, and the Internet protocols and
courses of dealing which are incorporated therein, impose restrictions on the manner in
which AOL customers and others may use AOL's e-mail system. Among the types of
conduct prohibited by the Terms of Service (and the acceptable use policies of the
Internet) is the sending of unsolicited commercial advertisements. This electronic junk
mail is often referred to pejoratively as "spam". It is prohibited because it constitutes an
invasion of privacy. In addition, it impairs the efficiency and viability of both the Internet
as a whole and online services, such as AOL, by overloading communication conduits.

26. Cyber has converted AOL's computer equipment for its own purposes by using it
without authorization to send its commercial messages. Cyber holds itself out as being
able to disseminate advertisements for a fee to hundreds of thousands of Internet users.
Cyber charges advertisers a fee and then includes messages concerning their products and
services in indiscriminate mass mailings sent to the e-mail addresses which Cyber has
compiled.

27. On information and belief, most of Cyber's mass mailings go to AOL customers.
These advertisements are voluminous and they eat up valuable online time for which
customers are billed. Many of AOL's customers have complained to AOL about the junk
e-mail sent by Cyber and have asked AOL to take action to cause Cyber to desist from its
activities.

28. Some of the advertisements sent to AOL customers by Cyber are adult oriented and of
a highly salacious nature. These materials are offensive to many AOL customers
particularly those with children.

29. Cyber never requested or obtained any authorization from AOL to engage in this
conduct nor has it compensated AOL in any manner for the use of AOL's equipment to
route the millions of unsolicited messages which Cyber has sent.

30. AOL would never have granted approval, even if Cyber had requested it, since
Cyber's conduct violates AOL's Rules of the Road which are incorporated in the Terms of
Service.

31. Cyber and or its President Sanford Wallace formerly were subscribers of AOL who
agreed to abide by AOL's Terms of Service. However, their right to use the AOL system
was terminated because of flagrant and intentional violations of the Terms of Service.
Following termination, Cyber has continued to gain access to the AOL system by
engaging the services of other Internet Service Providers ("ISPs"). Most such providers
have policies which prohibited the mailing of "spam" and Cyber has attempted to conceal
its activities from them.

32. Although Cyber and its owner are fully aware of the damage to others caused by the
mass mailing of"spam", Cyber has recklessly continued to engage in the dissemination of
such electronic mailings. Indeed it has boasted that it sends over 700,000 messages per
day.

33. Among the Internet addresses of persons to whom Cyber directs its unwanted
solicitations are those of at least 650,000 AOL customers. Intent only on reaping the
maximum commercial advantage from its activities, Cyber has made no effort to
determine the validity of the addresses. As a result a substantial quantity are invalid.
Ordinarily, such mailings would be directed back to the ISP whose system was used by
Cyber. To avoid detection, however, Cyber uses forged return mailing addresses or
domain names on its mailings. By continually changing its mailing address to avoid
detection, Cyber has attempted to evade AOL's security systems which are designed to
keep communication lines and server space open for AOL's customers. On numerous
occasions, Cyber has managed to gain unauthorized access to AOL's system to obtain
addresses of AOL subscribers and to bombard them with unwanted mailings.

34. The forged return e-mail addresses used by Cyber have contained AOL's mark and
domain name "aol.com". Because Cyber has used such return addresses on its mailings,
and because many of its mailings have been directed to invalid addresses, mass quantities
of its communications have been dumped into and automatically stored by AOL's
computer equipment. Cyber's conduct has damaged AOL and its e-mail system by
overloading this equipment and by causing it to become incapacitated on multiple
occasions. AOL has incurred substantial expenses in repairing the damage caused by
Cyber's malicious conduct. The correctly addressed mail sent by Cyber also has
overloaded and jeopardized the efficient operation of AOL's e-mail system. Although
AOL's customers pay for the e-mail service offered by AOL, Cyber has paid nothing for
the use of AOL's system to disseminate its unsolicited commercial messages.

35. Upon learning of the volume of junk e-mail that Cyber was sending, many of its ISPs
have terminated Cyber's account and have precluded it from obtaining access to their
systems. On information and belief, however, Cyber has found new ISPs through which it
continues sending its e-mail solicitations through AOL's system to AOL customers.

36. AOL has received numerous complaints from customers who have received Cyber's
mailings. Many of these customers have been deceived by Cyber's use of infringing
marks and forged return addresses and they have been led to believe that AOL is the
source of the mailings or that AOL has approved them. This confusion has damaged
AOL's reputation and goodwill and its relationship with its customers.

COUNT I
SERVICE MARK INFRINGEMENT UNDER THE STATUTORY LAW OF THE
UNITED STATES

37. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts of service mark infringement within the meaning of Section 32(1) of the
Trademark Act of 1946, 15 U.S.C. Sec. 1114(1). Paragraphs 1 through 36 of this
complaint are incorporated by reference as a part of this count.

38. Cyber has used and is using the names and marks AOL and "aol.com" in connection
with the advertising and selling of electronic advertising services in such a manner as to
create a likelihood of confusion among prospective purchasers, thereby inducing
purchasers and others to believe, contrary to fact, that the goods or services sold by Cyber
are rendered, sponsored, or otherwise approved by, or connected with AOL, which acts of
Cyber have damaged, impaired and diluted that part of AOL's goodwill symbolized by
the well known names and marks AMERICA ONLINE, AOL and "aol.com" to AOL's
immediate and irreparable damage.

39. Cyber's use of the names and marks AOL and "aol.com" in the manner alleged
constitutes service mark infringement within the meaning of 15 U.S.C. Sec. 11 14(1).

40. Cyber had actual knowledge of AOL's rights in the service marks AMERICA
ONLINE and AOL when it began using the name and marks complained of herein. Thus,
Cyber has willfully and deliberately infringed AOL's rights.

41. Cyber's acts of infringement have caused AOL irreparable injury, loss of reputation
and pecuniary damages. Unless enjoined by this court, Cyber will continue these acts of
infringement to AOL's immediate and irreparable damage.

COUNT II
SERVICE MARK DILUTION UNDER THE STATUTORY LAWS OF THE UNITED
STATES

42. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts constituting service mark dilution in violation of Section 43(c) of the
Trademark Act of 1946, 15 U.S.C. Sec. 1125(c). Paragraphs 1 through 41 of this
complaint are incorporated by reference as a part of this count.

43. Cyber has made commercial use of the names and marks AOL and "aol.com" with the
willful intent to trade on AOL's reputation or to cause dilution of the famous marks
AMERICA ONLINE, AOL, and "aol.com".

44. Cyber's use of the names and marks AOL and "aol.com" began long after AOL's
marks had become well known and famous.

45. Cyber's use of the names and marks AOL and "aol.com" causes dilution of the
distinctive quality of AOL's famous marks AMERICA ONLINE, AOL, and "'aol.com".

46. Cyber's use of the names and marks AOL and "aol.com" lessens the capacity of
AOL's famous marks AMERICA ONLINE, AOL and "aol.com" to identify and
distinguish AOL's goods and services.

47. Cyber's activities complained of herein constitute service mark dilution within the
meaning of Section 43(c) of the Trademark Act of 1946, 15 U.S.C. Secs. 1125(c).

48. Cyber's conduct has caused AOL irreparable injury, loss of reputation and pecuniary
damages. Unless enjoined by this court, Cyber will continue to willfully dilute AOL's
famous marks to the immediate and irreparable damage of AOL.

COUNT III
UNFAIR COMPETITION THROUGH FALSE DESIGNATION OF ORIGIN AND
FALSE ADVERTISING IN VIOLATION OF THE STATUTORY LAW OF THE
UNITED STATES

49. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts of unfair competition through the use of false designations of origin and
false advertising in violation of Section 43(a) of the Trademark Act of 1946, 15 U.S.C.
Sec. 1125(a). Paragraphs 1 through 48 of this complaint are incorporated by reference as
part of this count.

50. Cyber has used and is using the names and marks AOL and "aol.com", and Cyber has
made and is making false express or implied representations that its services originate
with or are endorsed by AOL, in connection with the advertising and selling of electronic
advertising services in such a manner as to create a likelihood of confusion among
prospective purchasers, thereby inducing purchasers and others to believe, contrary to
fact, that the goods or services sold by Cyber are rendered, sponsored, or otherwise
approved by, or connected with AOL, which acts of Cyber have damaged, impaired and
diluted that part of AOL's goodwill symbolized by its names and marks to AOL's
immediate and irreparable damage.

51. Cyber's use of trade names and marks that are confusingly similar to those used by
AOL in connection with the advertising and sale of its goods or services constitutes use
of a false designation of origin, and Cyber's express or implied representations that its
services originate with or are endorsed by AOL constitute a use of false descriptions or
representations of fact, within the meaning of Section 43(a) of the Trademark Act of
1946, 15 U.S.C. Sec. 1125(a).

52. Cyber's use of trade names and marks confusingly similar to those of AOL constitutes
unfair competition entitling AOL to remedies afforded pursuant to Section 43(a) of the
Trademark Act of 1946, 15 U.S.C. Sec. 1125(a).

53. Cyber's acts of false designation of origin and false advertising have caused AOL
irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this
court, Cyber will continue the acts of unfair competition complained of herein to AOL's
immediate and irreparable damage.

COUNT IV
FRAUDULENT ACTS OR PRACTICES IN VIOLATION OF THE CONSUMER
PROTECTION ACT OF THE COMMONWEALTH OF VIRGINIA

54. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in fraudulent acts or practices in violation of the Consumer Protection Act of the
Commonwealth of Virginia, Va. Code Secs. 59.1-1-198. Paragraphs 1 through 53 of this
complaint are incorporated by reference as a part of this count.

55. Cyber has used and is using the names and marks AOL and "aol.com" in connection
with the advertising and selling of electronic advertising services in such a manner as to
misrepresent its goods or services as those of AOL; to misrepresent the source,
sponsorship, approval, or certification of its goods or services; to misrepresent itself as
having an affiliation, connection or association with AOL; to misrepresent the geographic
origin of its goods or services; to misrepresent that its goods or services have certain
quantities, characteristics, ingredients, uses or benefits; to misrepresent that its goods or
services are of a particular standard, quality, grade, style or model; and to use other
deceptions, fraud, false pretenses, false promises or misrepresentations in connection with
consumer transactions, which acts of Cyber have damaged, impaired and diluted that part
of AOL's goodwill symbolized by the service marks AMERICA ONLINE, AOL, and
"aol.com" to AOL's immediate and irreparable damage.

56. Cyber's use of the names and marks AOL and "aol.com" in the manner alleged
constitutes deceptive trade practices of a type proscribed by Va. Code Secs. 59.1-1-198.

57. Cyber had actual knowledge of AOL's rights in the service mark AOL at the time it
decided to use the names and marks complained of herein. Thus, Cyber willfully and
deliberately infringed AOL's rights in the mark AOL.

58. Cyber's unfair business practices are of a recurring nature and harmful to the
consumers and the public at large.

59. Cyber's unfair and deceptive business practices have caused AOL irreparable injury,
loss of reputation and pecuniary damages. Unless enjoined by this court, Cyber will
continue these deliberate acts of infringement and deceit and will continue misleading
consumers and to AOL's immediate and irreparable damage.

COUNT V
UNFAIR COMPETITION UNDER THE COMMON LAW OF THE STATE OF
VIRGINIA

60. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts constituting unfair competition under the common law of the State of
Virginia. Paragraphs 1 through 59 of this complaint are incorporated by reference as a
part of this count.

61. Cyber has used and is using the names and marks AOL and "aol.com" in connection
with the advertising and selling of electronic advertising services in an unlawful, unfair
and fraudulent manner so as to create a likelihood of confusion among prospective
purchasers as to the source of its goods and services which acts have damaged, impaired,
and diluted the goodwill symbolized by AOL's name and mark to its immediate and
irreparable damage.

62. The aforesaid acts of Cyber constitute unfair competition under the common law of
Virginia.

63. Cyber's acts of unfair competition have caused AOL irreparable injury, loss of
reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue
said acts of unfair competition to AOL's immediate and irreparable damage.

COUNT VI
SERVICE MARK INFRINGEMENT UNDER THE COMMON LAW OF THE STATE
OF VIRGINIA

64. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts of service mark infringement in violation of the common law of the State
of Virginia. Paragraphs 1 through 63 of this complaint are incorporated by reference as a
part of this count.

65. Cyber has used and is using the names and marks AOL and "aol.com" in connection
with the advertising and selling of electronic advertising services in such a manner as to
create a likelihood of confusion among prospective purchasers, thereby inducing
purchasers and others to believe, contrary to fact, that the goods and services sold by
Cyber are rendered, sponsored, or otherwise approved by, or connected with AOL, which
acts of Cyber have damaged, impaired and diluted that part of AOL's goodwill
symbolized by the marks owned by AOL, to AOL's immediate and irreparable damage.

66. The nature, probable tendency and effect of Cyber's use of confusingly similar names
and marks in the manner alleged is to enable Cyber to deceive the public by passing off
its goods and services as being rendered, sponsored, or otherwise approved by or
connected with AOL.

67. Cyber's use of names and marks confusingly similar to those used by AOL in
connection with the advertising and selling of electronic advertising services, is likely to
cause confusion, mistake or deception as to the source or origin of Cyber's goods or
services and constitutes infringement of AOL's service marks under the common law of
the State of Virginia.

68. Cyber's acts of infringement have caused AOL irreparable injury, loss of reputation
and pecuniary damages. Unless enjoined by this court, Cyber will continue these acts of
infringement thereby deceiving the public and causing AOL immediate and irreparable
damage.

COUNT VII
TRADE NAME INFRINGEMENT UNDER THE COMMON LAW OF THE STATE
OF VIRGINIA

69. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts of trade name infringement under the common law of the State of
Virginia. Paragraphs 1 through 68 of this complaint are incorporated by reference as a
part of this count.

70. Cyber has used and is using the names and marks AOL and "aol.com" in connection
with the advertising and selling of electronic advertising services in such a manner as to
create a likelihood of confusion among prospective purchasers, thereby inducing
purchasers and others to believe, contrary to fact, that the goods or services sold by Cyber
are rendered, sponsored, or otherwise approved by, or connected with AOL, which acts
have damaged, impaired and diluted that part of AOL's goodwill symbolized by its trade
names AMERICA ONLINE, AOL and "aol.com", to AOL's immediate and irreparable
damage.

71. The nature, probable tendency and effect of Cyber's use of confusingly similar names
and marks in the manner alleged is to enable Cyber to deceive the public by passing off
its goods or services as being rendered, sponsored, or otherwise approved by or connected
with AOL.

72. Cyber's use of names and marks similar to the trade names AMERICA ONLINE,
AOL and "aol.com" in the advertising and sale of goods or services, is likely to cause
confusion, mistake or deception as to the source or origin of Cyber's goods or services.
Said conduct constitutes infringement of AOL's trade names under the common law of
the State of Virginia.

73. Cyber's acts of trade name infringement have caused AOL irreparable injury, loss of
reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue
these acts of infringement thereby deceiving the public and causing AOL immediate and
irreparable damage.

COUNT VIII
MISAPPROPRIATION IN VIOLATION OF THE COMMON LAW OF VIRGINIA

74. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts of common law misappropriation. Paragraphs 1 through 73 of this
complaint are incorporated by reference as a part of this count.

75. Cyber without authorization or at the very least exceeding any authorization has used
AOL's proprietary e-mail system to transmit unsolicited promotional and advertising
material to AOL's customers.

76. Cyber's unauthorized transmissions of unsolicited material, from which Cyber profits
to the detriment of AOL, constitute the unfair and unlawful misappropriation of
extremely valuable commercial property owned by AOL.

77. Cyber's parasitic use of AOL's system has seriously taxed the storage and
transmission capacity of AOL's mail server and has forced AOL to devote significant
resources to manage the unauthorized, unsolicited and disruptive message traffic
generated by Cyber.

78. By clogging AOL's mail server with its unsolicited promotional message traffic,
Cyber is directly competing with AOL and it is interfering with the use of AOL's
proprietary e-mail system by legitimate users.

79. Cyber's unlawful and inequitable activities damage and dilute the commercial value
of the e-mail services currently offered by AOL to its customers, and inequitably
misappropriate the equipment, skill, expenditures and labors of AOL for Cyber's
commercial advantage.

80. The foregoing activities of Cyber constitute misappropriation of AOL's commercial
property, in violation of the common law of the State of Virginia.

81. Cyber's misappropriation of AOL's commercial property has caused and continues to
cause AOL to suffer irreparable injury, loss of reputation and pecuniary damages. Unless
enjoined by this court, Cyber will continue these acts of misappropriation thereby causing
AOL immediate and irreparable damage.

COUNT IX
CONVERSION IN VIOLATION OF THE COMMONLAW OF VIRGINIA

82. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts of conversion in violation of the common law of the State of Virginia.
Paragraphs 1 through 81 of this complaint are incorporated by reference as a part of this
count.

83. The computers, computer networks and computer services that comprise AOL's e-
mail system are the personal property of AOL.

84. Cyber without authorization, or at the very least exceeding any authorization, has
intentionally used AOL's e-mail system for Cyber's own commercial benefit. Due to the
volume of its unsolicited messages Cyber has used AOL's e-mail system in such a
manner and extent as to exercise dominion over said property or, in the alternative, in
such a manner and extent as to deprive AOL and its customers of the legitimate use of
this proprietary and commercially valuable system.

85. The foregoing activities of Cyber constitute conversion of AOL's property in violation
of the common law of the State of Virginia.

86. Cyber's conversion of AOL's property has caused and continues to cause AOL to
suffer irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by
this court, Cyber will continue these acts of conversion thereby causing AOL immediate
and irreparable damage.

COUNT X
UNJUST ENRICHMENT ENTITLING AOL TO QUASI CONTRACT RELIEF
UNDER THE COMMON LAW OF VIRGINIA

87.As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts of unjust enrichment entitling AOL to Quasi Contract relief under the
common law of the State of Virginia. Paragraphs 1 through 86 of this complaint are
incorporated by reference as a part of this count.

88. Cyber has derived economic benefit from the dissemination of unsolicited
commercial messages through unauthorized use of AOL's proprietary e-mail.

89. Cyber has paid no compensation to AOL for the dissemination of Cyber's unsolicited
e-mail to AOL customers.

90. As a result of Cyber's conduct, Cyber has been unjustly enriched.

91. Cyber's unjust enrichment through the unauthorized use of AOL's property and
services has caused and continues to cause AOL to suffer irreparable injury, loss of
reputation and pecuniary damages. Unless enjoined by this court, Cyber will continue
deriving unjust enrichment thereby causing AOL immediate and irreparable damage.

92. Cyber's unjust enrichment creates a contract implied by law between Cyber and AOL,
entitling AOL to equitable relief, money judgment and other restitution for the losses
sustained by AOL and the benefits conferred upon Cyber through its unauthorized use of
AOL's property and services.

COUNT XI
VIOLATION OF THE ELECTRONIC COMMUNICATIONS PRIVACY ACT

93. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts constituting a violation of the Electronic Communications Act, 18 U.S.C.
Sec. 2701 et. seq. Paragraphs I through 92 of this complaint are incorporated by reference
as a part of this count.

94. AOL owns computer systems through which electronic communication services are
provided to customers for a fee.

95. Upon information and belief, Cyber through means of a computer used in interstate
commerce, intentionally obtained access to AOL's facilities by transmitting into AOL's
system excessive amounts of unsolicited e-mail directed to AOL's customers at their
respective AOL addresses. Cyber's access to AOL's system occurred without AOL's
authorization. Cyber's acts complained of herein were done knowingly and with the
specific intent of obtaining access so that Defendant could distribute for profit, on an
unsolicited basis, the promotional material of its clients.

96. Cyber's intentional and unauthorized access to AOL's system has caused damage to
the computers, computer systems, networks, information, data and programs of AOL's
computer servers and such damage, moreover, has been so extensive in nature as to
prevent the authorized access to AOL's system by AOL's own customers and personnel
thereby causing injury to AOL.

97. Defendant's acts complained of herein violate Chapter 121 of The Electronic
Communications Privacy Act, 18 U.S.C. Sec. 2701 et. seq.

98. Cyber's violations of the Electronic Communications Privacy Act have caused AOL
irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this
court, Cyber will continue these violations to AOL's immediate and irreparable damage.

COUNT XII
VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT

99. As a separate cause of action and ground for relief, AOL alleges that Cyber has and is
engaged in acts constituting a violation of the Computer Fraud and Abuse Act, 18 U.S.C.
Sec. 1030 et. seq. Paragraphs 1 through 98 of this complaint are incorporated by reference
as a part of this count.

100. AOL maintains one or more computers as defined in Sec. 1030(e)of the Computer
Fraud and Abuse Act through which e-mail transmissions are received, stored and
disseminated for the benefit of AOL customers ("AOL's computer facilities").

101. Defendant, without authorization, or at the very least exceeding any authorization,
knowingly and willfully caused, through the means of a computer used in interstate
commerce, the transmission of one or more programs, information, codes or commands
to AOL's computer facilities, with the intent, and at the very least, with reckless disregard
of a substantial and unjustified risk, that its transmissions would damage, or cause
damage to, a computer, computer system, network, information, data or program of
AOL's computer facilities.

102. Defendant's willful transmission of one or more programs, information, codes or
commands related to the unsolicited e-mail transmissions to AOL's computer facilities, in
fact caused damage to the computer, computer systems, networks, information, data and
programs which comprise said facilities and furthermore caused the withholding and
denial of use of the computers, computer services, systems, networks information, data
and programs of AOL's computer facilities, thereby causing injury to AOL.

103. The foregoing acts and conduct of the Defendant have caused, and if not enjoined
will continue to cause, loss or damage to one or more other persons of a value
aggregating $1,000 or more during any one year period.

104. Defendant's acts complained of herein violate the Computer Fraud and Abuse Act,
18 U.S.C. Sec. 1030 et. seq.

105. Cyber's violations of the Computer Fraud and Abuse Act have caused AOL
irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this
court, Cyber will continue these violations to AOL's immediate and irreparable damage.

COUNT XIII
VIOLATIONS OF THE VIRGINIA COMPUTER CRIMES ACT

106. As a separate cause of action and ground for relief, AOL alleges that Cyber has and
is engaged in acts constituting violations of the Virginia Computer Crimes Act, Va. Code
Sec. 18.2-152.2 et seq. Paragraphs 1 through 105 of this complaint are incorporated by
reference as a part of this count.

107. AOL maintains one or more computers, as that term is defined in Va. Code Sec.
18.2- 152.2, through which electronic mailings are received, stored and disseminated
("AOL's computers"). AOL's computers, computer networks and computer services are
the "property" of AOL as that term is defined in Va. Code Sec. 18.2-152.2.

108. Defendant, without authorization or at the very least exceeding any authorization,
knowingly, intentionally and willfully caused, through the use of a computer or computer
network, the malfunction of"AOL's computers".

109. Defendant, without authorization or at the very least exceeding any authorization,
intentionally through the use of a computer or computer network obtained property or
services by false pretenses.

110. Defendant, without authorization or at the very least exceeding any authorization,
intentionally through the use of a computer or computer network used AOL's computers,
computer networks, or computer services in a such a manner and extent as to exercise
dominion over such property or, in the alternative, in such a manner and extent as to
deprive AOL of the use of this property thereby in each instance converting AOL's
property for Defendant's own commercial use.

111. The foregoing acts caused damages to AOL's computer systems and furthermore
caused the withholding and denial of use of the computers, computer services, systems,
networks information, data and programs of AOL's computer facilities, thereby causing
injury to AOL.

112. Defendant's conduct complained of herein above violates the Virginia Computer
Crimes Act, Va. Code Sec. 18.2-152.3 and Sec. 18.2-152.4.

113. Cyber's violations of the Virginia Computer Crimes Act have caused AOL
irreparable injury, loss of reputation and pecuniary damages. Unless enjoined by this
court, Cyber will continue these violations to AOL's immediate and irreparable damage.

WHEREFORE, AOL prays for judgment against Cyber as follows:

(1) Pursuant to 15 U.S.C. Sec. 1116, and the law of the state of Virginia, that Cyber and
each of its agents, servants, employees, attorneys, assigns, and all others in privily or
acting in concert with them be permanently enjoined from:

(a) Using the names and marks AMERICA ONLINE, AOL, and "aol.com", or any name
or mark confusingly similar to AOL's names and marks in the advertising or sale of any
goods or services;

(b) Using in any manner any service mark, trademark, trade name, trade dress, words,
numbers, abbreviations, designs, colors, arrangements, collocations, or any combinations
thereof which would imitate, resemble or suggest AOL's well known service marks and
trade names;

(d) Unfairly competing with AOL, diluting the distinctiveness of AOL's well known
service marks and trade names, and otherwise injuring AOL's business reputation in any
manner;

(e) Publishing or sending any e-mail or other messages using the names or marks
AMERICA ONLINE, AOL, "AOL.COM" or any other name or mark confusingly similar
to AOL's names or marks.

(2) Pursuant to 15 U.S.C. Sec. 1118 and the law of the state of Virginia, Cyber be
directed to deliver up for destruction all software, advertisements, labels, signs, prints,
packages, wrappers, receptacles and all other materials in its possession or under its
control that resemble or bear the names or marks AMERICA ONLINE, AOL, or
"aol.com" or any other name or mark containing the term AOL or any other reproduction,
counterfeit, copy or colorable imitation of AOL's service marks and trade names and all
plates, molds, matrices, and other means of making or duplicating the same.

(3) Pursuant to 15 U.S.C. Sec. 1117 and the law of the state of Virginia, Cyber, account
and pay to AOL damages in an amount sufficient to fairly compensate AOL for the injury
it has sustained plus all profits which are attributable to the infringing sale of goods or
services under the names and marks complained of herein, and further that the amount of
the monetary amount granted herein be trebled in view of the willful and deliberate nature
of Cyber's unlawful conduct.

(4) Punitive damages in an amount sufficient to deter Cyber from engaging in its
unlawful conduct in the future.

(5) Pursuant to 15 U.S.C. Sec. 1117, the law of the state of Virginia, Cyber be ordered to
pay to AOL the costs of this action and AOL's attorney fees.

(6) Pursuant to 18 U.S.C. Sec. 2707, 18 U.S.C. Sec. 1030(g), Va. Code Ann. Sec.
18.2152.12, and the common law of Virginia, that Cyber and each of its agents, servants,
employees, attorneys, assigns, and all others in privily or acting in concert with them be
permanently enjoined from:

(a) Sending or transmitting any e-mail or other messages using the names or marks
AMERICA ONLINE, AOL, "AOL.COM" or any other name or mark confusingly similar
to AOL's names or marks.

(b) Sending or transmitting any e-mail to AOL or AOL's customers using a false,
fraudulent, anonymous, inactive, deceptive or invalid return e-mail address, or using any
other artifice, scheme or method of transmission that would prevent the automatic return
to Cyber of undeliverable e-mail sent to, or through, AOL's e-mail system.

(c) Sending or transmitting any e-mail to AOL's customers advertising the commercial
availability or quality of any property, goods or services without the prior invitation of
AOL or AOL's customers.

(d) Sending or transmitting any other unsolicited commercial e-mail or message through
AOL's e-mail system without the prior invitation of AOL or any of AOL's customers.

(7) Pursuant to 18 U.S.C. Sec. 2702, 18 U.S.C. Sec. 1030(g), Va. Code Ann. Sec. 18.2-
152.12, and the common law of the state of Virginia that Cyber, account and pay to AOL
damages in an amount sufficient to fairly compensate AOL for the injury it has sustained
as a result of Cyber's unlawful activity plus all profits which are attributable to Cyber's
violations of the statutes and other laws referenced in this complaint, and reasonable
attorney's fees and other litigation costs reasonably incurred.

(8) AOL be granted such other, further, different or additional relief as this court deems
equitable and proper.

Dated: June 14, 1996

AMERICA ONLINE, INC.

By /s/
Michael A. Grow Va. Bar No. 15021
Robert A. Hager Va. Bar No. 32797
VORYS, SATER, SEYMOUR AND PEASE
Counsel for Plaintiff
1828 L Street, N.W.,
Washington, D.C. 20036-5109
Tel: (202) 467-8800

CERTIFICATE OF SERVICE

It is hereby certified that a copy of the foregoing has been served upon Defendant's
counsel Paul H. Kochanski of Lerner, David, Littenberg, Krumholz & Mentlik at 600
South Avenue West, Westfield, New Jersey 07090 this 14th day of June 1996 by first
class mail, postage prepaid.

/s/
Michael A. Grow