Plaintiff Hypertouch, Inc. alleges as follows:

1. This Court has original jurisdiction of the causes of action herein which are brought under the CAN-SPAM Act of 2003 - 15 U.S.C. §7701, et seq., 15 U.S.C. §7707(g)(1).
2. The unlawful actions of the defendants were committed in the State of California and in the judicial district of this Court.
3. Plaintiff Hypertouch, Inc. is a California corporation located in Foster City, California, and provides Internet access service within the meaning of 15 U.S.C. §7703(11).
4. Plaintiff is informed and believes that BVWebTies, LLC is a limited liability company organized under the laws of Delaware with its principal place of business located in Marston Mills, Massachusetts, and is the owner of the BobVila.com domain name.
5. Defendant BlueStream Media is a business organization, form unknown located in Sacramento, California.

6. Plaintiff refers to the allegations of the preceding paragraphs of this complaint, and incorporates the same herein by this reference as though set forth in full.
7. From January 1, 2004 forward, plaintiff received electronic mail from defendants to its mail server located in California that violated the CAN-SPAM Act of 2003.
8. Attached as Exhibit 1 is an example of one of the electronic mail communications received by plaintiff.
9. Of the first 41 relevant electronic mails sent by the defendants on January 1, 2004, all contained or were accompanied by header information that was materially false or materially misleading. Specifically, the identities provided by the defendants of the machines delivering mail to plaintiff's mail server did not match IP addresses of the contacting machine. As a standard business practice, the plaintiff's mail servers automatically verify the information provided with every incoming email and records the accuracy of such information in the server log and the email header. Accurate header information is greeted with a friendly "pleased to meet you" while fraudulent header information is greeted with a warning "your name is not [fraudulent name]." Each of these 41 initial messages of the spam run were flagged for and contained false identifiers because the IP address of the contacting machine was not the IP address that corresponded to the principal host name provided by the defendant. In other words, the defendant's machines gave the names of other machines rather than their own when sending email to the plaintiff's servers. Exhibit 2 is the portion of the plaintiff's mail server logs recording of the arrival of Exhibit 1 from a machine with an IP address of 63.89.113.157 but that misidentifying itself by claiming to be "mail.bluestreammedia.com" which resolves to a completely different IP address of 208.184.55.103. Therefore, the electronic mail violated U.S.C. §7705(a)(1).
10. Plaintiff further alleges that the defendants sent at least 41 separate items of electronic mail to the plaintiff includes a domain name, trackingclicks.com, which was registered to a false non-existent California Corporation "Clicks2Track Inc." Exhibit 3 contains a copy of the domain registration of trackingclicks.com obtained by means of false representation. Said conduct was in violation of 15 U.S.C. §7705(a)(1).
11. Plaintiff further alleges that they received three (3) separate items of electronic mail from the defendants to three (3) separate email addresses that were submitted to mechanisms requesting not to receive future commercial electronic mail messages. Said conduct by the defendants violated 15 U.S.C. §7705(a)(4). Attached as Exhibit 4 is an example of one of the messages sent to an "opted-out" address.
12. Plaintiff further alleges that the defendants sent at least 14 separate items of electronic mail to the plaintiff that had no valid physical postal address of the sender. Said conduct was in violation of 15 U.S.C. §7705(a)(5)(iii).
13. Plaintiff further alleges that the defendants sent at least one (1) separate item of electronic mail to the plaintiff to an address harvested from domain name contact registration information. Said conduct was in violation of 15 U.S.C. §7705(b)(1)(A)(i).
14. Plaintiff further alleges that the defendants sent at least 57 separate items of electronic mail to the plaintiff to addresses generated using automated means. Said conduct was in violation of 15 U.S.C. §7705(b)(1)(A)(ii).
15. As a proximate result of said unlawful conduct by said defendants, plaintiff is entitled to damages for the actual monetary loss incurred or statutory damages in the amount of up to $100.00 in the case of violation of Section 5(a)(1) or up to $25.00 in the case of each violation of the other subsections of Section 5 in the form of statutory damages as set forth in 15 U.S.C. §7707(g)(1) and (3)(A) .
16. Plaintiff furthermore seeks a preliminary and permanent injunction against the defendants for their current and future violations of the CAN-SPAM Act of 2003 as it and members of the general public will continue to incur damages as a result of the unlawful conduct of said defendants. The seeking of injunctive relief by the plaintiff is specifically authorized by 15 U.S.C. §7707(g)(1)(A).
17. Plaintiff furthermore seeks its attorney fees and costs against the defendants pursuant to 15 U.S.C. §7707(g)(4).

WHEREFORE, plaintiff prays judgment against the defendants and each of them as follows:

1. For actual monetary damages according to proof, or in the alternative, statutory damages for up to $100.00 for each violation of said Section 7006(a)(1) and up to $25.00 in the case of any other violation of said Section 7006;
2. For aggravated damages under 15 U.S.C. §7707(g)(3)(C) of up to three times the amount above for these violations committed by the defendants willfully and knowingly, and for defendants' unlawful activity which includes aggravated violations of section 7005(b);
3. For a preliminary and permanent injunction preventing the defendants and all person acting in concert with them from the violation of the Can-Spam Act of 2003;
4. For an award of reasonable attorneys' fees and costs according to proof;
5. For costs of suit; and
6. For such other and further relief as this Courts deems just and proper.