Stephen L. Cohen Mercedes Kelley, VSB # 43525 Federal Trade Commission 600 Pennsylvania Ave., NW Washington, DC 20580 202-326-3222; 326-3665; 326-3395 (fax)

 

 

 

 

 

FEDERAL TRADE COMMISSION, Plaintiff,

v.

CARLOS PEREIRA
d/b/a atariz.com, PremiaNet Corp, Atari Corp, and piratelynx.com,

W.T.F.R.C. PTY LTD.
d/b/a Kewl Photographies, Kool Images, taboosisters.com, taboohardcore.com, and tabooanimals.com, and

GUISEPPE NIRTA,
individually, and as director and secretary of W.T.F.R.C. PTY LTD., Defendants.

Civil Action No.
TEMPORARY RESTRAINING ORDER

 

Plaintiff, the Federal Trade Commission ("Commission"), having filed its complaint for a permanent injunction and other relief in this matter, pursuant to Section 13(b) of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 53(b), and having moved ex parte for a Temporary Restraining Order pursuant to Rule 65 of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 65, and the Court having considered the complaint, declarations, exhibits, and memorandum of law filed in support thereof, and now being advised in the premises finds that: 1. This Court has jurisdiction of the subject matter of this case and there is good cause to believe it will have jurisdiction of all parties hereto;   2. There is good cause to believe that the defendants have engaged and are likely to engage in acts and practices that violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and that the Commission is therefore likely to prevail on the merits of this action;   3. There is good cause to believe that irreparable harm to the public will continue without immediate action by this Court, and that damage to the Court's ability to grant effective final relief for consumers will occur from the destruction or concealment by defendants of their records unless said defendants are immediately restrained and enjoined by Order of this Court. There is thus good cause for relieving the Plaintiff of the duty to provide defendants with prior notice of the Plaintiff's motion;   4. Weighing the equities and considering the Plaintiff's likelihood of ultimate success, a temporary restraining order with equitable relief is in the public interest; and   5. No security is required of any agency of the United States for issuance of a restraining order. Fed. R. Civ. P. 65(c).

ORDER

Definitions

A. "Document" is synonymous in meaning and equal in scope to the usage of the term in Federal Rule of Civil Procedure 34(a), and includes writings, drawings, graphs, charts, photographs, audio and video recordings, computer records, and other data compilations from which information can be obtained and translated, if necessary, through detection devices into reasonably usable form. A draft or non-identical copy is a separate document within the meaning of the term.

B. "Defendants" mean Carlos Pereira ("Pereira"), doing business as atariz.com, PremiaNet Corp, Atari Corp, piratelynx.com, and any other domain name registered by him, W.T.F.R.C. Pty Ltd ("WTFRC"), doing business as Kewl Photographies, Kool Images, taboosisters.com, taboohardcore.com, tabooanimals.com, and any other domain name registered by it, Guiseppe Nirta ("Nirta"), and each of their successors, assigns, officers, agents, servants, employees, subsidiaries or affiliates, and those persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, whether acting directly or through any entity, corporation, subsidiary, division, or other device, unless specified otherwise.

C. "Internet" means a worldwide system of linked computer networks that use a common protocol to deliver and receive information. The "Internet" includes, but is not limited to, the following forms of electronic communication: electronic mail and mailing lists, the World Wide Web ("Web"), bulletin boards and newsgroups, chat groups, remote computer access (telnet), and file transfer protocol (ftp).

D. "URL" is an abbreviation for Uniform Resource Locator. Each Web page and Web site has a distinct URL, such as www.atariz.com or www.atariz.com/c_141.htm, that serves as a unique Internet address for that Web site or Web page.

E. A "Web site" is a set of electronic documents, usually a home page and subordinate pages, readily viewable on a computer by anyone with access to the Internet, standard software, and knowledge of the Web site's URL.

F. A "Web page" is a single electronic document within a Web site, readily viewable on a computer by anyone with access to the Internet, standard software, and knowledge of the Web page or Web site's URL. Web site visitors generally first link to its "home page," which is a Web page that serves as an index, or gateway, to the rest of the Web site's contents.

G. A "search engine" is a software program that searches Internet documents for specified keywords and returns addresses and descriptions of documents where the keywords are found. The term is often used to describe specific Web sites like AltaVista, Excite, and Lycos, which enable consumers to search for documents on the Internet or in newsgroups.

H. A "meta tag" is a set of words or phrases within a Web page that, among other things, summarizes the contents of that Web page. Meta tags contain such information as a general description of the page, keywords for search engines that describe the contents of the Web page, and copyright information. Typically, meta tags are part of the source code of a Web page and are not readily visible to Internet users. Meta tags are used by search engines to index Web sites for the purpose of comparing sites to an Internet user's search request.

I.

PROHIBITED BUSINESS ACTIVITIES

IT IS THEREFORE ORDERED that, in connection with the advertising, promotion, offering for sale, sale or provision of any goods or services on the Internet, the Defendants are hereby temporarily restrained and enjoined from:

A. Copying and posting the Web pages of any unrelated party without authorization;   B. Inserting any type of code or command in any Web page or on any Web site that automatically redirects a consumer to any other Web page or Web site;   C. Misrepresenting the contents of their Web pages or Web sites through the use of meta tags, or by any other means;   D. Overriding the normal functioning of a consumer's Internet browser; and   E. Registering any new domain names, either directly or through any third party, without notifying counsel for the FTC within 24 hours. Such notice shall be sent in accordance with Part VIII of this Order, and shall include the true identity of the domain name registrant, his or her mailing address, e-mail address, and telephone number.

II.

IT IS FURTHER ORDERED that, pending determination of the Commission's request for a preliminary injunction, any party hosting any Web pages or Web sites for Defendants shall:

A. Immediately take whatever steps may be necessary to ensure that Web pages or Web sites operated, in whole or in part, under the names atariz.com, piratelynx.com, taboosisters.com, taboohardcore.com, tabooanimals.com, shemen.com, and extreme-boys.com cannot be accessed by the public;   B. Prevent the destruction, or erasure of Web pages or Web sites operated, in whole or in part, under the names atariz.com, piratelynx.com, taboosisters.com, taboohardcore.com, tabooanimals.com, shemen.com, and extreme-boys.com by preserving such documents in the format in which they are currently maintained; and   C. Immediately notify counsel for the FTC of any other Web page or Web site operated or controlled by any defendant.

III.

IT IS FURTHER ORDERED that, pending determination of the Commission's request for a preliminary injunction, Network Solutions, Inc., and any other domain name registrar shall:

A. Immediately suspend the registration of atariz.com, piratelynx.com, taboosisters.com, taboohardcore.com, tabooanimals.com, shemen.com, and extreme-boys.com; and   B. Immediately notify counsel for the FTC of any other Web page or Web site operated or controlled by any defendant.

IV.

RECORD KEEPING PROVISIONS

IT IS FURTHER ORDERED that Defendants are hereby restrained and enjoined from:

A. Destroying, erasing, mutilating, concealing, altering, transferring, or otherwise disposing of, in any manner, any: books; records; "verification" or other audio or video tape recordings; computer tapes, discs or other computerized records; accounting data; personal and business checks (fronts and backs); correspondence; forms; advertisements; brochures; manuals; banking records; customer lists; customer files; invoices; telephone records; ledgers; payroll records; scripts; postal receipts; appointment books; income tax returns; or other documents of any kind in their possession, custody, or control; and   B. Failing to make and keep books, records, bank statements, documents indicating title to real or personal property, and any other data which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of Defendants.

V.

EXPEDITED DISCOVERY

IT IS FURTHER ORDERED that any party may take the deposition of any other party or any third party upon 24 hours' notice.

VI.

ORDER TO SHOW CAUSE

IT IS FURTHER ORDERED, pursuant to Fed. R.Civ. P. 65(b), that defendants Pereira, WTFRC, and Nirta shall appear before this Court on the _____ day of _______________, 1999 at __________ o'clock ___.m., at the United States Courthouse, Room ____to show cause, if there is any, why this Court should not enter a preliminary injunction, in substantially the form of this order, pending final ruling on the Complaint against Defendants, enjoining them from further violations of Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a), and imposing such additional relief as may be appropriate.

Defendants shall serve answering pleadings or materials on counsel for the Commission not less than ___  business days prior to the hearing on the Commission's request for a preliminary injunction. Plaintiff may submit reply pleadings or materials by _______ .

VII.

SERVICE OF ORDER

IT IS FURTHER ORDERED that copies of this Order may be served by any means, including facsimile transmission or electronic mail, upon any entity or person that may have possession, custody, or control of any documents of the Defendants, or that may be subject to any provision of this Order.

VIII.

CORRESPONDENCE WITH AND NOTICE TO PLAINTIFF

IT IS FURTHER ORDERED that for the purposes of this Order, all correspondence and pleadings to the Commission shall be addressed to:

Stephen L. Cohen, Esq.
Federal Trade Commission
600 PA. Ave., NW
Washington, DC 20580
(202) 326-3222 (voice)
(202) 326-3395 (facsimile).

Notice may be provided by e-mail to scohen@ftc.gov, dforbes@ftc.gov, and mkelley@ftc.gov.

IX.

IT IS FURTHER ORDERED that the Temporary Restraining Order granted herein shall expire , unless, for good cause shown, the Order is extended, or unless, as to any Defendant, the Defendant consents that it should be extended for a longer period of time.

X.

RETENTION OF JURISDICTION

IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for all purposes.

SO ORDERED, this ___ day of _____________, 1999, at ___.m.

_______________________________
United States District Judge
Eastern District of Virginia
Alexandria Division