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Wednesday, December 1, 1999

No Etoy for Christmas
From the Silenced-Night Department

by Jamie McCarthy

It's been a long week for etoy.com. On Monday, a judge issued a preliminary injuction fining them $10,000 each day that their website was hosted at their domain. They shut it down right away, of course. They're just internet artists. They don't have six billion dollars like the company that filed the suit: eToys.com. It's beginning to look a lot like Christmas. Click More. Update: For more information about etoy, see the freshly-updated dmoz category.

etoy was founded in 1994 by a group of European artists who worked on the cutting edge, doing performance art at techno events and raves. Their focus has always been on the internet as new medium; this interview gives a feel for their perspective.

They picked the name "etoy" literally by consensus and running code. Being from Italy, England, and Switzerland, physical collaboration was difficult, so they got together on an IRC channel and went through a list of random names generated by a perl script. When "etoy" came up, they all knew that was the name they wanted; they first used it in October of 1994. In October 1995 they put up their website at etoy.com.

Christmas 1995 came and went.

In 1996, etoy won their first artistic award. Their work typically blurs the line between real world and art; in this case, they had undertaken to demonstrate how important and yet how fragile the system of search engines was. By subverting the meta tags of prominent websites like Playboy, they pulled inexperienced surfers to their site, where they put in a plug for Kevin Mitnick, and had a few laughs at the newbies' expense. They called it the "Digital Hijack."

A curious kind of art. In 1996 it was original enough to win an award from Ars Electronica. Nowadays everyone knows the trick, the search engines find it and disregard it, and some underhanded websites try to make a fast buck by stealing trademarks - but etoy did it first, for fun.

Christmas 1996 came and went.

In June 1997 etoys.com, with an S, began operations. It wasn't until October that their website went online. They filed for a U.S. trademark on their domain, at which point etoy got a little alarmed and filed for their own trademark on their own domain. Maybe because they're based in Europe, or maybe for some other reason, etoy says their application is still pending on some technicalities.

But it doesn't matter when their trademark is granted. Their website went online in October 1995, two full years before etoys', and it's date of first use that's important - not the date of filing.

Christmas 1997 came and went.

Christmas 1998 came and went.

But now it's 1999, the year of the e-tailer. Suddenly etoys.com, with an S, has gone public and is worth six billion dollars. Meanwhile etoy.com, without an S, again putting the spotlight on corporations and society, has raised money by "selling shares" of itself. I'm not quite sure how they did it, but at an artists' gathering, a half-serious, half-mocking exhibition-slash-fundraising they pulled in something over ten thousand dollars. (Which they then donated to their friends in the U.S., also working at the boundary of society and corporations, RTMark, best-known for their George W. Bush parody site.)

In the year of the e-tailer, what kind of speech scares corporations more than anything? Disrespect. Artists who don't play by the rules. People who don't understand that business is serious business.

Etoys.com, with an S, wants etoy.com, with no S. They offered money. At one point they were offering cash and (mostly) stock that would have been worth almost half a million dollars. No sale.

But that should give us an idea of how much they're willing to spend on lawyers.

Finally, in September, eToys filed a lawsuit against etoy, on the grounds that a potential customer had mistakenly gone to the wrong site and had seen the message that - if they wanted to enjoy etoy.com to its fullest extent - they should download "the fucking flash plugin." They also didn't like the pierced breasts or etoy's sense of humor.

To be precise, they claim that "the antisocial, obscene, and offensive images associated with defendants' use of the mark 'etoy,' both on the Internet and elsewhere, have tarnished the ETOYSŪ mark and the eToys brand name..."

Let this be a lesson to anyone whose domain is coveted by a multi-billion-dollar company: careful with the F-word.

In October and November the case was bounced from an L.A. court to U.S. District Court, and finally to a California State Court. In late November the judge refused a request to let the European artists attend the proceedings by teleconference. In those proceedings, the judge was told that the artists had engaged in "digital hijacking" (the 1996 project), and had sold shares of stock without being properly regulated on an official stock exchange (the 1999 fundraising exhibition). Worst of all, they were hosting illegal hardcore pornography (which was actually just a link to another site).

They claim:

"Defendants use the mark ETOY indiscriminately and in random association with unrelated concepts. For example, on the etoy web site alone, defendants use the mark ETOY in conjunction with other, randomly selected words to create phrases such as: 'etoy.research,' 'etoy.eternity,' 'etoy.timezone,' 'etoy.history,' 'etoy.servers,' 'etoy.strategy,' 'etoy.journeys,' 'etoy.universe,' and 'etoy.crew.'

"By using the mark ETOY in this random, indiscriminate manner, defendants cause both ETOY and the ETOYSŪ mark to lose any distinctive, signifying meaning."

Serious business.

The lawyers also kindly suggested that, since at least one etoy member is from Switzerland, they really would be more suited to a website in the .ch domain: etoy.ch. Never mind the years of work and the reputation that the artists have built around etoy.com - we all know that "dot-com" belongs to America!

Faced with a torrent of buzzwords, the judge issued a preliminary injunction barring etoy from: operating a website in the etoy.com domain; associating their domain name with the "digital hijack"; or selling their "shares" in the U.S.

Penalty for disobeying the injuction: $10,000 per day in fines.

On November 30, etoy.com shut down its Apache webserver. Its last access came from the eToys law firm (which has been monitoring it closely). They had no choice, really. In fact, when I talked with a member of etoy, he was very nervous about saying things which might get him in more legal trouble. Suddenly, the artists are afraid to speak.

How can this be, when, as the Village Voice wrote in an excellent article, this lawsuit doesn't even pass the "giggle test"? It's absurd to think that one website can shut down another for having a similar domain name - when the second site is not a domain poacher and has been operating two years longer than the first.

The date of the next court hearing, at which this preliminary injunction will surely be overturned: December 27th. How convenient! Just after the Christmas shopping season.

If you'd like to see more about etoy, their domain is down of course, and I don't know of any mirrors, but their fans have constructed a site at toywar.com that has some information. And etoy may put some or all of its site back online at its IP number (not name!):

Good rules have been written to prevent things like this from happening. Unfortunately, the rules have not taken effect yet for most domains. Even after they do take effect, their legal status will be uncertain until they are tested in court.

Those rules are ICANN's Domain Name Dispute Resolution Policy. This policy ensures that the conditions under which a domain name can be disputed are strictly limited. For such a dispute even to proceed, a complainant must assert that each of three things is true:

your domain name infringes on a trademark;

you have "no rights or legitimate interests" to your domain;

and your domain name is being used "in bad faith."

As long as you're operating in good faith, or you have any legitimate interest in your domain, there is not even cause to bring up a dispute over a domain. Clearly this puts etoy.com on firm ground, because regardless of the trademark issue (which should be resolved once their mark registration is granted) they win on the other two points. This doesn't stop clueless judges from issuing injuctions, of course. But having these rules codified as official policy will give the legal system better guidelines to operate by.

These rules went into effect for some domain name registries on Wednesday, but will not apply to the most popular registry, Network Solutions, until January.

I can't even complain to eToys.com. I clicked all over their website looking for an email contact address and couldn't find one. When I filled in the web form to ask that someone get in touch with me for this story, all I got was a email form letter:

It is our goal to respond to all order-related e-mail within 24 hours. If your e-mail is not order-related, we will do our best to take care of your questions, concerns and suggestions as soon as possible.

It's 72 hours later, so my email must not have been sufficiently order-related.

In the meantime, I can at least have the satisfaction of taking my order-related business elsewhere this holiday season. I'm sure eToys couldn't care less, but it will serve me as a small comfort during the remaining 22 holy shopping days. In a world run by retailers, e-tailers, and lawyers, I need everything I can get to help me make sense of the bizarre orgy of spirituality-soaked commerce that serves as the endcap of each year.

Ho ho ho.

Jamie McCarthy is a 20-something programmer in Michigan; He's been working against hypocrisy and untruth on the net, since he got on the net. In his spare time, he enjoys biking, horseback riding, long walks on the beach, and making up autobiographical descriptions. This piece first appeared on the web site slashdot where the dialog continues. Repurposed with permission.


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