Using Nonsensical Domain Names Not Spam

Using multiple nonsensical domain names for commercial email advertisements to by-pass spam filters does not violate California’s anti-spam statute as long as the domain names actually exist.The California Supreme Court found because the domain names “actually exist and are technically accurate, literally correct, and fully traceable to Vonage’s marketing agents,”  their use does not violate the state’s anti-spam act.

The class-action case arose when a customer complained of receiving 11 unsolicited emails from Vonage Holdings Corp. and its affiliated companies. The messages were from domains with the names superhugeterm.com, formycompanysite.com, ursunchcntr.com, urgrtquirkz.com, countryfolkgospel.cm, lowdirectsme.com, yearnfrmore.com, and struggletailssite.com. All could be traced to a single physical address in Nevada where Vonage’s marketing agent was located. The suit alleged that “none of these domain names provides any indication to the recipient (or its spam filter) that the advertisement is from Vonage.” Because the marketing agent used so many domain names, spam filters did not catch the emails.

California law prohibits unsolicited commercial email advertisements that contain “falsified, misrepresented, or forged header information.” The plaintiff argued that the varied, garbled, and nonsensical nature of the domain names created a misleading or deceptive impression that they were from different entities rather than just from Vonage. The court found that the real issue is whether the subject line of an email is likely to mislead a recipient and that the anti-spam statute does not prohibit the use of multiple domain names.

The court held that a “domain name in a single e-mail that does not identify the sender, the merchant-advertiser, or any other person or entity simply does not make any ‘representation’ regarding the e-mail’s source, either express or implied, within the common understanding of that term, so it cannot be said to constitute ‘misrepresented’ information” under the statute. In addition, the court found that the federal CAN-SPAM Act supersedes any state action that prohibits falsity or deception in any portion of a commercial email message. As a result, the use of the multiple nonsensical domain names does not violate California law.

Craig Kleffman v. Vonage Holdings Corp., California Supreme Court No. S169195, filed June 21, 2010