Spam suits seek poetic justice

Call it the case of the hijacked haiku.

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Habeas is suing bulk e-mailers, accusing them of using its poetry without permission in an unusual use of trademark law to clamp down on spammers.

Habeas, headed by lawyer and antispam activist Anne P. Mitchell, puts a new twist on spam prevention by inserting some trademarked haiku lines into the header of an e-mail. The haiku is supposed to indicate to spam filters that the accompanying message is not spam in an effort to make sure that legitimate messages get through to recipients. Habeas' haikus are recognized by the antispam filters and technology of companies including Spam Assassin, AOL and Juno.

When it launched last August, Habeas promised to closely track how its haikus were used and threatened to sue those who ran afoul of its trademarks and copyrights.

This week, Habeas followed through on those threats, filing two suits in federal court in San Jose, Calif., accusing some Internet marketers of trademark violation and breach of contract.

"The only reason to put our mark in the e-mail is to make sure it gets past spam filters," Mitchell said. "If someone uses our trademark without permission, we are required to go after them."

One suit names financial services marketing company Intermark Media and its affiliate Avalend, claiming the companies included the Habeas mark it their e-mails to ensure the messages got through. The other suit names Dale Heller and some companies that advertised in Heller's e-mail, alleging they broke a contract by attaching the Habeas mark to spam messages.

Intermark President Mike Krongel said he hadn't seen the suit but was surprised by the allegations. "I?ve never even heard of the company," he said of Habeas. Krongel said his company rents mailing lists to send targeted advertising but claimed that he does not spam consumers. "We do not promote spam at all."

Krongel speculated that the case may have stemmed from an incident last month when a spammer, apparently out of Germany, co-opted one of Intermark's advertisements and began an unauthorized spamming campaign with it. But he said that was only a guess and he did not know whether those spam messages contained any Habeas information.

Heller could not be reached for comment.

Scott Frewing, a partner with the law firm Baker & McKenzie who is representing Habeas, said it's rare to use trademark law to fight spam. "It?s definitely unique," he said.

Spam, as anyone with an e-mail account knows, is becoming more of a menace every day. As a result, companies are getting increasingly creative in fighting it. Habeas' approach is one of the latest in an innovative string that includes pay-per-message plans, limits on outgoing messages, and a concept that forces people to donate money to charity if they want to reach a recipient.

As people become more incensed about unwanted advertisements, the courts also are becoming an increasingly popular venue for spam disputes. Most consumers take their spam issues to small claims courts. But the bigger tech guns are starting to get more serious about clamping down on spammers in higher courts.

Microsoft is so fed up with spammers that it has sued in federal court to learn the identities of some and it has promised to pursue similar suits. Both AOL and EarthLink have won monetary damages in suits against spammers.

Most of the spam suits so far have involved breach-of-contract or similar claims. Habeas' Mitchell said she hoped her case will embolden more companies to go after spammers with trademark claims. "I would hope that when we're successful, it will wake them up," she said.