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The court's holding on plaintiff's trademark infringement claims is at odds with that reached by two other district courts - the District Court for the Eastern District of Virginia in , 2003 WL 22808692 (E. As the Southern District of New York court noted, "this Court disagrees with, and is not bound by these findings." Court Canadian court holds that sending unsolicited bulk e-mail, or "spam," is contrary to the emerging principles of "Netiquette" and accordingly violates a hosting agreement in which plaintiff "agree[d] to follow generally accepted 'Netiquette' when sending e-mail messages or posting newsgroup messages ...".

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Defendant was permitted to take such action not only because plaintiff had breached the agreement's prohibition against violating 'generally accepted Netiquette,' but also because plaintiff had breached a provision of that agreement which permitted defendant to add additional terms to the contract.

Defendant's notice to plaintiff to cease sending spam was seen by the court as notice of defendant's decision to add such an additional provision to the parties' contract.

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