Archive notice: This article was originally published on April 3, 2008. Links and embedded videos are preserved as part of the historical record.
Microsoft has won a final-instance court case against a spam sender who used forged Hotmail accounts to send unsolicited advertising for pornographic websites. At Microsoft’s request, the spammer was ordered to cease and desist, provide information and pay damages. A fine of 10,000 euros had already been imposed on the spammer.
This is the first time in Germany that a sender of spam emails has been held liable by a final court ruling for trademark infringement through the use of forged sender addresses. Because sending spam emails is not a separate criminal offence under German law, Microsoft relied on the Trademark Act and the Act Against Unfair Competition (UWG).
The legal dispute stems from an interim injunction that Microsoft, as operator of the Hotmail email platform, obtained against the spam sender from Schleswig-Holstein back in December 2003. Subsequently, at Microsoft’s request, the Freiburg Regional Court imposed a coercive fine of 10,000 euros on the spammer on January 13, 2006, because he continued his activities. At the same time, Microsoft also sued the pornography spammer for trademark infringement and the illegal use of forged Hotmail sender addresses. After Microsoft had already prevailed before the Mannheim Regional Court and the Karlsruhe Higher Regional Court, the pornography spammer lodged a complaint with the Federal Court of Justice. The Federal Court of Justice rejected this complaint on March 19, 2008. The Karlsruhe Higher Regional Court’s ruling is therefore final. In addition to the coercive fine, the spam sender must now bear the legal costs of the entire proceedings and pay damages for the trademark infringements committed.
Fine of up to 250,000 euros or imprisonment threatened
The spam sender, who denied any responsibility for the junk emails with suggestive and sexist content, continued his illegal spam activities even after the interim injunction. A total of nine further spam mailings could be attributed to him, each of which probably circulated several thousand spam emails. As a result, he was fined 10,000 euros. If the spammer continues illegally sending spam emails, he faces a fine of up to 250,000 euros or coercive detention.
«It is gratifying that the Federal Court of Justice’s decision establishes that spamming can also infringe trademark rights. This means that spammers can now also be prosecuted under the Trademark Act, even though spamming as such is not a criminal offence in Germany», says Dorothée Jasper, lawyer at Microsoft Deutschland GmbH. «Investigations are becoming increasingly difficult, however, because professional spammers try to conceal their actual responsibility through foreign front companies.»
Further Links:
- Microsoft
