Whitehouse.com, a sexually explicit Web site, contends America Online Inc. (NYSE:AOL) is preventing it from sending e-mail messages to subscribers. At the same time, Whitehouse.com is accusing AOL of infringing upon one of its registered trademarks after negotiations for a possible sale fell through.
In 1996, AOL began taking measures to crack down on spam, but Whitehouse.com contends it is only attempting to send out commercial acknowledgements.
However a spokeswoman for AOL said the service has identified Whitehouse.com as a spammer over a year ago.
"They send excessive amounts of spam to our service," said the spokeswoman, Tricia Primrose. "If they want to adhere to our rules about sending e-mail through our service, they are welcome to do that. But we will block domains that send unsolicited bulk spam to our members."
In an interview with ZDNN, company founder Dan Parisi criticized the online service and said it was putting limitations on Whitehouse.com's freedom of speech.
"It's no different then when somebody buys a book from Amazon.com or Barnes and Noble.com that has pornography," Parisi said. "We're just sending them a notice saying their order has been received."
Parisi said AOL initially denied it was targeting messages addressed by Whitehouse.com and attributed the problem to a "misconfiguration."
"We looked into it and there was no misconfiguration," Parisi said. He added that AOL subsequently informed him that it was actively blocking messages from Whitehouse.com.
The equivalent of a thank you note
Mark Lawless, the lawyer representing Whitehouse.com, said the messages were "the equivalent of a thank you for joining."
"They were not unsolicited. They were not advertising. They were not sexually explicit," he said.
Lawless, who has sent a letter to AOL's legal consul, said Whitehouse.com has not decided whether to press ahead with a lawsuit.
"We haven't gone through all the alternatives," he said. "I'm confident that they don't want to set a standard that's any different than Amazon.com or themselves.
"If they call what Dan's doing is spamming, how is that different from when I turn on AOL?"
Whitehouse.com also asserts it has the rights to the 'MYNEWS' mark. But AOL dismissed the claim.
"We believe MYNEWS is a descriptive mark which can't be formally trademarked," he said. "A lot of other companies are using the phrase."
Misleading name - on purpose?
The Whitehouse.com site, which features a mix of pornography, political satire and life chat, began in June 1997 as a free speech site. But within three months, Parisi said, he decided to switch to an adult format.
"After losing money, you realize it was a dead end. It wasn't going anywhere. I had to bring money in. Otherwise, I'd have had to shut everything down so I made the choice at that point.
The move has paid off financially. Whitehouse.com now has more than 7,000 subscribers, who pay monthly $20 fees, according to Parisi. He said the site became profitable two months ago.
"There's no way to make money on the Internet as a small- or medium-sized business unless you do either adult services or gambling -- and gambling is not something I want to get involved with at this point," Parisi said.
In part, the site owes its success to the high profile of its domain name. The U.S. government has not taken out a trademark for the name `White House.'
Most popular Internet sites use the suffix.com in their domain names and Whitehouse.com is often the beneficiary when Web surfers search for the White House home page (www.whitehouse.gov) by typing in the incorrect address.
However, Whitehouse.com has come in for criticism from cyber-advocates who warn that under-age children can easily stumble across the Web site.
"[Parisi] is within his legal rights but I don't like it," said Lawrence Magid, a newspaper columnist and author.
"It's very easy for a child or someone else to accidentally visit his site," he said. "I've even written articles where I've suggested people visit the White House Web site and accidentally typed in .com instead of gov."
"Luckily, they were always caught by copy editors," he continued. "But it's a very, very easy mistake to make. In fact the more Net savvy you are, the more likely you are to make that mistake because you are sort of conditioned that most things are .com."