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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Internet Laws and Statutes

UNSOLICITED E-MAIL LEGISLATION

WASHINGTON HOUSE BILL 2752 (1998) (AS ENACTED)

AN ACT Relating to electronic mail; adding a new chapter to Title 19 RCW; creating a new section; prescribing penalties; and providing an expiration date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1 The legislature finds that the olume of commercial electronic mail is growing, and the consumer protection division of the attorney general's office reports an increasing number of consumer complaints about commercial electronic mail. Interactive computer service providers indicate that their systems sometimes cannot handle the volume of commercial electronic mail being sent and that filtering systems fail to screen out unsolicited commercial electronic mail messages when senders use a third party's internet domain name without the third party's permission, or otherwise misrepresent the message's point of origin. The legislature seeks to provide some immediate relief to interactive computer service providers by prohibiting the sending of commercial electronic mail messages that use a third party's internet domain name without the third party's permission, misrepresent the message's point of origin, or contain untrue or misleading information in the subject line.

The legislature also finds that the utilization of electronic mail messages for commercial purposes merits further study. A select task force should be created to explore technical, legal, and cost issues surrounding the usage of electronic mail messages for commercial purposes and to recommend to the legislature any potential legislation needed for regulating commercial electronic mail messages.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

  1. "Commercial electronic mail message" means an electronic mail message sent for the purpose of promoting real property, goods, or services for sale or lease.
  2. "Electronic mail address" means a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.
  3. "Initiate the transmission" refers to the action by the original sender of an electronic mail message, not to the action by any intervening interactive computer service that may handle or retransmit the message.
  4. "Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.
  5. "Internet domain name" refers to a globally unique hierarchical reference to an internet host or service, assigned through centralized internet naming authorities, comprising a series of character strings separated by periods, with the right-most string specifying the top of the hierarchy.

NEW SECTION. Sec. 3

  1. (1) No person, corporation, partnership, or association may initiate the transmission of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that:

    (a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or

    (b) Contains false or misleading information in the subject line.

  2. For purposes of this section, a person, corporation, partnership, or association knows that the intended recipient of a commercial electronic mail message is a Washington resident if that information is available, upon request, from the registrant of the internet domain name contained in the recipient's electronic mail address.

NEW SECTION. Sec. 4

  1. It is a violation of the consumer protection act, chapter 19.86 RCW, to initiate the transmission of a commercial electronic mail message that:

    (a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or

    (b) Contains false or misleading information in the subject line.

  2. The legislature finds that the practices covered by this chapter are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

NEW SECTION. Sec. 5

  1. Damages to the recipient of a commercial electronic mail message sent in violation of this chapter are five hundred dollars, or actual damages, whichever is greater.
  2. Damages to an interactive computer service resulting from a violation of this chapter are one thousand dollars, or actual damages, whichever is greater.

NEW SECTION. Sec. 6

  1. An interactive computer service may, upon its own initiative, block the receipt or transmission through its service of any commercial electronic mail that it reasonably believes is, or will be, sent in violation of this chapter.
  2. No interactive computer service may be held liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any commercial electronic mail which it reasonably believes is, or will be, sent in violation of this chapter.

NEW SECTION. Sec. 7. Sections 1 through 6 of this act constitute a new chapter in Title 19 RCW.

NEW SECTION. Sec. 8.

  1. The select task force on commercial electronic mail message is hereby created. The select task force shall:

    (a) Identify technical, legal, and cost issues in relation to the transmission and receipt of commercial electronic mail messages over the internet;

    (b) Evaluate whether existing laws are sufficient to resolve any technical, legal, or financial problems created by the increasing volume of commercial electronic mail messages;

    (c) Review efforts being made by the federal government and other states to regulate the transmission of commercial electronic mail messages; and

    (d) Prepare a report identifying policy options and recommendations for any potential legislation needed to regulate commercial electronic mail messages. The report shall be delivered to the house of representatives energy and utilities committee by November 15, 1998.

  2. The select task force shall be composed of five members, consisting of:

    (a) Two members of the house of representatives, one from each of the two largest caucuses, each member being a member of the house of representatives energy and utilities committee, appointed by the speaker of the house of representatives;

    (b) Two members of the senate, one from each of the two largest caucuses, each member being a member of the senate energy and utilities committee, appointed by the president; and

    (c) One person appointed by the governor.

  3. The select task force shall solicit input from interested parties, including but not limited to, persons representing:

    (a) Attorney general's consumer protection division;

    (b) Internet service providers;

    (c) Direct marketers;

    (d) Manufacturers of electronic mail messaging software;

    (e) Nonprofit organization interested in free speech and other civil liberty matters; and

    (f) Internet users.

  4. Staff support for the select task force shall be provided by the house of representatives office of program research and senate committee services.
  5. This section expires December 31, 1998.

NEVADA SENATE BILL NO. 13

Introduced by Senator Raggio

Prefiled on January 14, 1997

As amended and passed by Assembly June 30, 1997 (third reprint)

Amended version concurred in by Senate July 1, 1997

AN ACT relating to actions concerning persons; providing that a person who transmits certain items of electronic mail is liable to the recipient for civil damages under certain circumstances; providing that the district court may enjoin a person from transmitting certain items of electronic mail under certain circumstances; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND

ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1 Chapter 41 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 8, inclusive of this act.

Sec. 2 As used in sections 2 to 8, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 3 to 6, inclusive, of this act have the meanings ascribed to them in those sections.

Sec. 3 "Advertisement" means material that:

  1. Advertises for commercial purposes the availability or the quality of real property, goods or services; or
  2. Is otherwise designed or intended to solicit a person to purchase real property, goods or services.

Sec. 4 "Electronic mail" means a message, a file or other information that is transmitted through a local, regional or global network, regardless of whether the message, file or other information is:

  1. Viewed;
  2. Stored for retrieval at a later time;
  3. Printed onto paper or other similar material; or
  4. Filtered or screened by a computer program that is designed or intended to filter or screen items of electronic mail.

Sec. 5. "Network" means a network comprised of one or more computers that may be accessed by a modem, electronic or optical technology or other similar means.

Sec. 6 "Recipient" means a person who receives an item of electronic mail.

Sec. 7 1. Except as otherwise provided in section 8 of this act, if a person transmits or causes to be transmitted to a recipient an item of electronic mail that includes an advertisement, the person is liable to the recipient for civil damages unless:

(a) The person has a preexisting business or personal relationship with the recipient; or

(b) The recipient has expressly consented to receive the item of electronic mail from the person; or

(c) The advertisement is readily identifiable as promotional, or contains a statement providing that it is an advertisement, and clearly and conspicuously provides:

(1) The legal name, complete street address and electronic mail address of the person transmitting the electronic mail; and

(2) A notice that the recipient may decline to receive additional electronic mail that includes an advertisement from the person transmitting the electronic mail and the procedures for declining such electronic mail.

2. If a person is liable to a recipient pursuant to subsection 1, the recipient may recover from the person:

(a) Actual damages or damages of $10 per item of electronic mail received, whichever is greater; and

(b) Attorney's fees and costs.

3. In addition to any other recovery that is allowed pursuant to subsection 2, the recipient may apply to the district court of the county in which the recipient resides for an order enjoining the person from transmitting to the recipient any other item of electronic mail that includes an advertisement.

Sec. 8 1. If a person provides users with access to a network and, as part of that service, transmits items of electronic mail on behalf of those users, the person is immune from liability for civil damages pursuant to sections 2 to 8, inclusive, of this act, unless the person transmits an item of electronic mail that includes an advertisement he prepared or caused to be prepared.

2. The provisions of sections 2 to 8, inclusive, of this act do not apply to an item of electronic mail that is obtained by a recipient voluntarily. This subsection includes, but is not limited to, an item of electronic mail that is obtained by a recipient voluntarily from an electronic bulletin board.

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