Ask a Lawyer, David L. Leon, Attorney, Dallas, Texas (214) 696-0021 » intellectual property

I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws?

David Leon — Tue, 26 May 2009 01:01:27 +0000

Yes, Texas Business and Commerce Code Sec. 321.114 gives internet service providers and email service providers the authority to block emails that the ISP or email provider reasonably believes are in violation of 321.052 (the Texas anti-Spam laws). The provider must have in place a reasonably accessible mechanism to unblock the emails, should the sender believe s/he is in compliance with the law. The statute is listed below.

AUTHORITY TO BLOCK CERTAIN COMMERCIAL ELECTRONIC MAIL MESSAGES; QUALIFIED IMMUNITY. (a) An electronic mail service provider may on its own initiative block the receipt or transmission through its service of any commercial electronic mail message that the service provider reasonably believes is or will be transmitted in violation of this chapter, if the service provider:
(1) provides a process for the prompt, good faith resolution of a dispute related to the blocking with the sender of the commercial electronic mail message; and
(2) makes contact information for the resolution of the dispute accessible to the public on the service provider’s Internet website.
(b) An electronic mail service provider who complies with Subsection (a) may not be held liable for blocking the receipt or transmission through its service of any commercial electronic mail message that the service provider reasonably believes is or will be transmitted in violation of this chapter.

25/05/2009 -- I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge? (0)
25/05/2009 -- I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued? (0)
25/05/2009 -- Is it a crime to send a sexually explicit unsolicited commercial email? (0)
25/05/2009 -- I want to send an unsolicited commercial email in Texas. How do I comply? (0)
25/05/2009 -- Is it against the law to falsify (munge) internet headers or use fake subject lines when sending unsolicited emails? (0)
14/06/2009 -- I’d like to sue a spammer who used my equipment. Can I do this while still protecting my trade secrets? (0)
25/05/2009 -- Can I create a class action lawsuit to go after a spammer in Texas? (0)
25/05/2009 -- My email servers were used by a spammer to send unsolicited emails. Can I go after the spammer? (0)
25/05/2009 -- Is there a civil penalty in Texas for sending unsolicited commercial email (UCE or Spam)? (0)
25/05/2009 -- I want to start a new business. In order to attract customers, can I call my business a “wholesaler” even though I sell to the public? (0)

I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued?

David Leon — Tue, 26 May 2009 00:57:22 +0000

Yes, however, you may have a defense. Texas Business and Commerce Code Sec. 321.113 provides a limited immunity from prosecution in the event that a sender acted in good faith in hiring a sender to send compliant unsolicited commercial emails, but the company (without knowledge of the sender) violates the law. However, there may still be liability for violating another state’s laws, if the emails wind up in an out of state user’s mailbox.

QUALIFIED IMMUNITY FROM LIABILITY OF SENDERS. A sender may not be held liable for the transmission of an electronic mail message that violates this chapter if the sender:
(1) contracts in good faith with an electronic mail service provider to transmit electronic mail messages for the sender; and
(2) has no reason to believe the electronic mail service provider will transmit any of the sender’s electronic mail messages in violation of this chapter.

25/05/2009 -- Is it a crime to send a sexually explicit unsolicited commercial email? (0)
25/05/2009 -- I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws? (0)
25/05/2009 -- I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge? (0)
25/05/2009 -- Can I create a class action lawsuit to go after a spammer in Texas? (0)
25/05/2009 -- My email servers were used by a spammer to send unsolicited emails. Can I go after the spammer? (0)
25/05/2009 -- Is there a civil penalty in Texas for sending unsolicited commercial email (UCE or Spam)? (0)
25/05/2009 -- I want to send an unsolicited commercial email in Texas. How do I comply? (0)
25/05/2009 -- Is it against the law to falsify (munge) internet headers or use fake subject lines when sending unsolicited emails? (0)
14/06/2009 -- I’d like to sue a spammer who used my equipment. Can I do this while still protecting my trade secrets? (0)
01/01/2010 -- When can a judgment creditor take my home? (0)

I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge?

David Leon — Tue, 26 May 2009 00:54:31 +0000

Although you can be sued, you may have a defense under Texas Business and Commerce Code Sec. 321.112. The defense is very specific, and only applies to relay, store and forward servers

IMMUNITY FROM LIABILITY: TELECOMMUNICATIONS UTILITIES AND ELECTRONIC MAIL SERVICE PROVIDERS.

(c) A person injured by a violation of this chapter does not have a cause of action against a telecommunications utility or an electronic mail service provider under this chapter solely because the utility or service provider:
(1) is an intermediary between the sender, or a person acting on behalf of the sender, and the recipient in the transmission of electronic mail that violates this chapter;
(2) provides transmission, routing, relaying, handling, or storing, through an automatic technical process, of an unsolicited commercial electronic mail message through the utility’s or service provider’s computer network or facilities; or
(3) provides telecommunications services, information services, or other services used in the transmission of an electronic mail message that violates this chapter.

25/05/2009 -- I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws? (0)
25/05/2009 -- I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued? (0)
25/05/2009 -- Is it a crime to send a sexually explicit unsolicited commercial email? (0)
25/05/2009 -- I want to send an unsolicited commercial email in Texas. How do I comply? (0)
25/05/2009 -- Is it against the law to falsify (munge) internet headers or use fake subject lines when sending unsolicited emails? (0)
14/06/2009 -- I’d like to sue a spammer who used my equipment. Can I do this while still protecting my trade secrets? (0)
25/05/2009 -- Can I create a class action lawsuit to go after a spammer in Texas? (0)
25/05/2009 -- My email servers were used by a spammer to send unsolicited emails. Can I go after the spammer? (0)
25/05/2009 -- Is there a civil penalty in Texas for sending unsolicited commercial email (UCE or Spam)? (0)
25/05/2009 -- I want to start a new business. In order to attract customers, can I call my business a “wholesaler” even though I sell to the public? (0)

Is it a crime to send a sexually explicit unsolicited commercial email?

David Leon — Tue, 26 May 2009 00:36:38 +0000

Yes, however, Texas Business and Commerce Code Sec. 321.052(a) provides a potential “safe harbor” under Texas law. Failure to comply with 321.052(a) may lead to criminal liability under Sec. 321.101. TRANSMISSION OF MESSAGE CONTAINING OBSCENE MATERIAL OR MATERIAL DEPICTING SEXUAL CONDUCT; CRIMINAL PENALTY. (a) A person commits an offense if the person intentionally takes an action to transmit a message that contains obscene material or material depicting sexual conduct in violation of Section 321.052(a)(1).
(b) An offense under this section is a Class B misdemeanor.

Please note this is state specific, and there may be other state’s law or federal law implications as well.

25/05/2009 -- I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued? (0)
25/05/2009 -- I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws? (0)
25/05/2009 -- I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge? (0)
25/05/2009 -- Can I create a class action lawsuit to go after a spammer in Texas? (0)
25/05/2009 -- My email servers were used by a spammer to send unsolicited emails. Can I go after the spammer? (0)
25/05/2009 -- Is there a civil penalty in Texas for sending unsolicited commercial email (UCE or Spam)? (0)
25/05/2009 -- I want to send an unsolicited commercial email in Texas. How do I comply? (0)
25/05/2009 -- Is it against the law to falsify (munge) internet headers or use fake subject lines when sending unsolicited emails? (0)
14/06/2009 -- I’d like to sue a spammer who used my equipment. Can I do this while still protecting my trade secrets? (0)
01/01/2010 -- When can a judgment creditor take my home? (0)

Why would l want to franchise my business?

David Leon — Wed, 04 Mar 2009 03:58:26 +0000

A franchise is a useful tool to grow a business where the owners have a profitable business model that can be easily replicated but you do not have the time, energy or capital to open new locations. The franchise model allows business owners to grow the business and the brand with less capital compared to opening individual locations. Additionally, franchises, if structured properly, should attract motivated individuals who will have substantial time and money invested into the franchise (and hopefully try to make the franchise profitable.)

25/05/2009 -- I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws? (0)
25/05/2009 -- I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued? (0)
25/05/2009 -- I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge? (0)
25/05/2009 -- Is it a crime to send a sexually explicit unsolicited commercial email? (0)
01/03/2009 -- What is an intellectual property license? What is a royalty? (0)
01/03/2009 -- What is a trade secret? (0)
01/03/2009 -- What is a trademark? (0)
13/02/2009 -- I have an idea. Can I patent it? (0)
13/02/2009 -- What is a patent? (0)

What is an intellectual property license? What is a royalty?

David Leon — Mon, 02 Mar 2009 00:09:52 +0000

In order to legally use the intellectual property of another, the owner of the intellectual property needs to give permission. Such permission is called a “license.” The payment for the license is typically the “royalty.”

01/03/2009 -- What is a trademark? (0)
13/02/2009 -- I have an idea. Can I patent it? (0)
13/02/2009 -- What is a patent? (0)
25/05/2009 -- I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws? (0)
25/05/2009 -- I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued? (0)
25/05/2009 -- I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge? (0)
25/05/2009 -- Is it a crime to send a sexually explicit unsolicited commercial email? (0)
03/03/2009 -- Why would l want to franchise my business? (0)
01/03/2009 -- What is a trade secret? (0)

What is a trade secret?

David Leon — Mon, 02 Mar 2009 00:07:45 +0000

A trade secret is a type of intellectual property which gives a competitive advantage to the knowledge holder, and in which the knowledge holder takes steps to keep secret. For example, a confidential customer list could be considered a trade secret. Our firm can assist with trade secret litigation, trade secret contracts and the like.

25/05/2009 -- I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws? (0)
25/05/2009 -- I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued? (0)
25/05/2009 -- I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge? (0)
25/05/2009 -- Is it a crime to send a sexually explicit unsolicited commercial email? (0)
03/03/2009 -- Why would l want to franchise my business? (0)
01/03/2009 -- What is an intellectual property license? What is a royalty? (0)
01/03/2009 -- What is a trademark? (0)
13/02/2009 -- I have an idea. Can I patent it? (0)
13/02/2009 -- What is a patent? (0)

What is a trademark?

David Leon — Mon, 02 Mar 2009 00:03:39 +0000

A trademark is used to designate a source of goods or services. Typically, a trademark is a logo, graphic or short phrase used to identify a product or company. Trademarks may be obtained at common law, and they may be registered with the United States Patent and Trademark Office. If a trademark is being used without permission, then a trademark infringement or dillution suit may be necessary in order to protect the mark. If your mark is “merely descriptive” of your product, then you may not not be able to register your mark (there is still a supplemental register, though).

01/03/2009 -- What is an intellectual property license? What is a royalty? (0)
25/05/2009 -- I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws? (0)
25/05/2009 -- I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued? (0)
25/05/2009 -- I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge? (0)
25/05/2009 -- Is it a crime to send a sexually explicit unsolicited commercial email? (0)
03/03/2009 -- Why would l want to franchise my business? (0)
01/03/2009 -- What is a trade secret? (0)
13/02/2009 -- I have an idea. Can I patent it? (0)
13/02/2009 -- What is a patent? (0)

I have an idea. Can I patent it?

David Leon — Sat, 14 Feb 2009 01:04:12 +0000

An idea, in and of itself, may not be subject to patent protection. It should be reduced to a tangible form. It also must be a new idea (novel), non-obvious, and serve some kind of purpose before it can be subject to patent protection.

01/03/2009 -- What is an intellectual property license? What is a royalty? (0)
13/02/2009 -- What is a patent? (0)
25/05/2009 -- I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws? (0)
25/05/2009 -- I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued? (0)
25/05/2009 -- I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge? (0)
25/05/2009 -- Is it a crime to send a sexually explicit unsolicited commercial email? (0)
03/03/2009 -- Why would l want to franchise my business? (0)
01/03/2009 -- What is a trade secret? (0)
01/03/2009 -- What is a trademark? (0)

What is a patent?

David Leon — Sat, 14 Feb 2009 01:01:06 +0000

A patent is a mechanism to protect an idea, invention, method or design. Patents are either novel creations or modifications to existing ideas. Prior to filing a patent application with the United States Patent and Trademark Office, it is recommended that a patentability search be conducted.

01/03/2009 -- What is an intellectual property license? What is a royalty? (0)
13/02/2009 -- I have an idea. Can I patent it? (0)
25/05/2009 -- I am an internet service or email provider. May I block emails that I believe are in violation of the Texas anti-spam laws? (0)
25/05/2009 -- I contracted with a company to send email ads for me, but I didn’t know they violated the law. Can I still be sued? (0)
25/05/2009 -- I run an electronic mail service or internet service provider. Can I be sued if one of my clients sends unsolicited commercial email (spam) without my knowledge? (0)
25/05/2009 -- Is it a crime to send a sexually explicit unsolicited commercial email? (0)
03/03/2009 -- Why would l want to franchise my business? (0)
01/03/2009 -- What is a trade secret? (0)
01/03/2009 -- What is a trademark? (0)