The plan was abuse copyright and trademark law in order to engage in anticompetetive lock-in. IE, to require payment from people wishing to produce games, people who didn't pay would be forced to commit 'trademark and copyright infringement'. The lock-in failed.
Different situation entirely. Nowhere does Habeas suggest or imply that you should *only* accept mail with their mark, so you can hardly call this lock-in.
Using the Habeas mark seems to me more like posting a Better Business Bureau badge in your store window, or "Designed for Windows XP" on your software packaging, or putting a TRUSTe badge on your website. It indicates that someone (Habeas, BBB, Microsoft, TRUSTe) thinks you're trustworthy, so that people will be more likely to patronize your store, buy your product, or, in this case, allow your email through a spam filter. If you use one of these badges without passing the criteria, you're misrepresenting yourself, probably committing fraud, and certainly reducing the value of the mark itself, and that seems like it would be legally actionable.
Kelson Vibber
SpeedGate Communications <www.speed.net>
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