Antitrust Law Daily Wrap Up, ADVERTISING—DMinn: Health Club Entitled to Default Judgment in Spam Email Case, (Apr 26, 2013)

By Jody Coultas, J.D.

Anytime Fitness LLC was granted a default judgment on claims it filed against a company that sent over 8,000 unsolicited emails to Anytime Fitness’s franchisees and customers in violation of the CAN-SPAM Act, the federal district court in St. Paul has held (Anytime Fitness LLC v. Michael Roberts and MRA Enterprises, April 23, 2013, Nelson, S.)

The court held that Anytime Fitness was entitled to judgment by default on all counts pleaded under the CAN-SPAM Act. A party violates the Act by sending unsolicited emails that do not contain clear and conspicuous identifications that the message is an advertisement or solicitation, clear and conspicuous notices of the opportunity to decline to receive further commercial electronic mail messages from the sender, and valid physical postal addresses of the sender.

Anytime Fitness demonstrated that it was adversely affected by the CAN-SPAM violations, according to the court. The high volume of spam caused Anytime Fitness to experience higher bandwidth utilization and a disruption in business relationships with its franchisees.

The court awarded Anytime Fitness $25 per unsolicited email it received. Statutory damages maybe awarded under the CAN-SPAM Act that equal the number of unlawful message multiplied by up to $25. Anytime Fitness received 8,337 emails that violated the Act. Although the violations were willful, the court found that an award above the statutory damages was not proportionate to the gravity of the conduct.

The sender was permanently enjoined from (1) sending, transmitting, directing, aiding, facilitating or conspiring with others to send or transmit any unsolicited commercial e-mail to any e-mail account on the @anytimefitness.com domain name; (2) using, directing, aiding, or conspiring with others to use Anytime Fitness’s computers or computer networks, in any manner, directly or indirectly, in connection with the transmission or transfer of any electronic information; and (3) acquiring, compiling, or transferring e-mail addresses that contain an @anytimefitness.com domain.

Anytime Fitness also succeeded on the merits of a trademark infringement claim against the email sender based on a likelihood of confusion among consumers and franchisees as to the source, sponsorship, or approval of the sender’s goods and services by Anytime Fitness, according to the court. The sender was enjoined from using the mark.

The case is No. 12-CV-02913-SRN-JJG.

Attorneys: Jerry S. Podkopacz (Larkin Hoffman Daly & Lindgren Ltd) for Anytime Fitness LLC.

Companies: Anytime Fitness LLC

Cases: Advertising ConsumerProtection Privacy MinnesotaNews