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21 December 1999
Updated: 05 February 2001
20 May 2001
S t a r t B u t t o n
Hoax du Jour: The Grinch Is Real.
We interrupt our previously scheduled "Hoax du Jour" for this news flash.
The Grinch is real.
No kidding. If you thought that this was the season of good will, and
charity towards our fellows, you haven't heard about eToys.com.
In fact, if you rely upon CNN.com and c¦net for your online news, you might
never have heard. Inexplicably, they seem to be ignoring this story.
THE STORY SO FAR....
This Christmas is the season in which e-commerce firms have been ramping up
for a big blowout. Companies like Amazon.com and eToys have been preparing
for a huge online sales volume. As reported in c¦net, eToys increased its
3rd quarter expenditures for sales and marketing alone to US$60 million.
According to a story in Salon, eToys decided to sue the German art group
etoy in September for trademark infringement, trademark dilution and unfair
competition, after two customers complained about the site. What's puzzling
is that eToys formed, and registered their domain name, well after etoy.
Etoy is an art group which was formed in 1995; the group registered their
etoy.com web site in 1996; their U.S. trademark application is pending. The
site has garnered awards and notoriety every since (including the 1996
Golden Nica award at Ars Electronica in Linz, Austria). Their projects
usually involve mocking corporate behavior, and the web site has reported
"share value" performance for their various endeavors.
EToys.com formed in 1996, and registered their domain name in 1997. Since
then they've made lots of money.
EToys Lawsuit Is No Fun For Artist Group
New York Times, December 9, 1999
A. Michael Froomkin, a University of Miami law professor, said:
"In the case of a regular old garden-variety trademark, it is
pretty much an ironclad rule that, if you're using it legally
before the trademark owner creates his business and trademarks
his use, then all those uses you were making up to the time the
trademark was filed, you may continue to make."
On September 29, Los Angeles Superior Court Judge John B. Shook ordered a
preliminary injunction prohibiting the artists from using their web address
www.etoy.com. Etoy shut down the address for fear of incurring $10,000 per
day fines; the site is still available by IP address. A subsequent
appearance by the two parties is scheduled for December 27.
According to the New York Times piece, this was not eToys' only gambit.
They had offered up to US$400,000 and stock options to the art group for
the domain name. Was the lawsuit a friendly bargaining tool? Not according
to "zai," an etoy spokesperson. ""We are not against selling," he said,
"but at the moment we see how they treat us, like we're some kind of thing
you can manipulate. We don't sell art under this pressure. You cannot force
us to sell you this site just because you need it.""
Subsequent to the decision, Network Solutions blocked e-mail services for
the domain, an unprecedented action -- particularly because the injunction
didn't call for this. This is unprecedented because ICANN rules that were
adopted in October don't call for suspending a domain while it's being
disputed. If that were the case, malicious complaints to ICANN or Network
Solutions would effectively prevent domain holders from using their
registered domain name.
As the story progressed, reported primarily on ZDnet and Wired, the eToys
rhetoric got deeper and deeper. "We absolutely respect their freedom and
their points of view," said Ken Ross, eToys' vice president of
communications. EToys.com claims that the etoy site contained obscenity and
sadomasochistic images, but Wired noted that nothing of that nature
appeared this past summer, when the legal rumble was brewing. In fact, a
trademark lawyer told NPR's Madeleine Brand that trademark disputes for
companies with similar trademarks but dissimilar services are generally
groundless.
As Mark K. Anderson pointed out in The Standard, the etoy site "is about as
different from the toy retailer as is a SoHo gallery from Toys 'R' Us." A
week ago, an etoy representative discovered that the eToys.com trademark
had been rejected by the U.S. trademark office.
No Toying Around
The Standard, December 15, 1999
"This is a terrible situation that you can take away something
from an earlier bona fide user and owner simply by putting a lot
of money into a new domain name or a new trademark," notes Peter
Wild, the Zurich-based lawyer for etoy. "This is not how it's
supposed to be."
"SHAME ON ETOYS"
Since the court decision, there has been a groundswell, if not an online
riot, of support for the etoy group. Private sites and administrators have
hosted virtual sit-ins, firewall blacklists (preventing users from
accessing eToys.com), discussion areas, and news bulletins. What hooligans
did wrong in Seattle during the WTO conference, netizens are doing right on
the Internet. They're mobilizing.
No similar wave of affirmation has come to the aid of eToys, the plastic
toy company hiding behind the icons of Santa Claus and the almighty dollar.
No surprise there. It could be because no previous battle over identity or
intellectual property has been so clearly delineated, and so emotionally
charged. Etoy represents no real threat to eToys.com. EToys.com has chosen
to be a very real threat to the art group, and in so doing, has brought to
the public eye the first large-scale battle over commerce and free speech
on the Internet.
Everything about this story is polarized. Business versus free speech.
Lawyers versus artisans. Americans versus Europeans. Dot.com newbies versus
Internet pioneers. How could a toy company, admittedly targeting young
children and adult mothers, make such a mean-spirited move in the weeks
before Christmas? Are they daft?
'Be Grateful for Etoy'
Wired, December 17, 1999
"Shame on eToys for misusing the law in this way."
Shari Steele, EFF Director of Legal Services
"Human nature will assert itself, and I'd very much
like to see certain behavior curtailed. EToys is
engaging in that sort of behavior here. What
they are doing is extremely predatory and wrong."
John Perry Barlow
BOYCOTT THE GRINCH.
In the "Hoax du Jour" column, I usually encourage thoughtful regard; "think
before you click." I ask you, the reader, to make up your own mind. To
weigh all the facts, hear out the opinions, and act on your own
sensibilities.
On this occasion, I break with policy. This Christmas, I ask you to boycott
eToys.com. Don't click, don't visit, don't buy; and tell your friends to do
the same. If you bought something from eToys, I suggest that you return the
purchase.
Why? eToys.com has chosen to use legal bullying to stifle free speech on
the Internet, and to steal (yes, steal) a domain name that is not theirs.
Their stated excuse is to "protect consumers," but in fact their action is
aimed at denying choice to Internet users, and denying the use of a legally
owned domain name to the rightful owners. This is truly anti-user,
anti-consumer, and anti-Internet behavior. It's despicable.
I hope that you'll agree with me, and join the growing Internet movement to
shun eToys.com.
February 5, 2001
After a dismal Christmas, 2000, e-tail season, and ceasing shipments to
Canada, eToys.com announced that it is laying off all remaining employees
ceasing operations during spring, 2001.
eToys anticipates shutting down in April
C|net, February 5, 2001
"With today's action, the company has now issued job
elimination notices to all of its employees, with service
dates continuing up to April 6," eToys said in a statement.
"In order to continue operations in 2001, the company will
require an additional, substantial capital infusion," the
company said, adding that it "does not believe that
additional capital will be available to the company."
There is justice. God bless all who boycotted eToys.com during the 1999 and
2000 Christmas seasons, and throughout the year.
May 20, 2001
The wake for eToys.com is complete. KB Toys, a great place to buy toys at
bargain prices (my testamonial), has acquired what's left of eToys. See
below. :)
KB Toys Gets eToys Web Site
Wired, May 17, 2001
KB Toys, which operates 1,300 stores nationwide,
scooped up the rights to the name and well-known
website of defunct e-tailer eToys at a bankruptcy
auction Thursday.
KB successfully bid nearly $3.4 million for eToys'
intellectual assets during eToys bankruptcy proceedings
in Delaware, company officials said.
... Visitors to the eToys website will be kicked to
KB's own KBkids.com site.
The deal also includes valuable eToys software, which
Byrne said would boost KB's site. Last month, KB paid
$5.4 million for eToys' unsold inventory.
David Spalding
(Disclaimers: "The Grinch" is a creation of Dr. Seuss and is not a real
personage. eToys.com's CEO Toby Lenk is a real person, and, in my view, a
very real grinch. You may've guessed that this web site is an Amazon.com
Associate. You can read all the pages for free; if you buy something from
one of the Amazon links, a small referral fee is paid to Korova.com. It's a
small dividend to offset the real expenses of hosting a web site.)
Related Links -->
http://146.228.204.72:8080/ (etoy.com site)
http://www.rtmark.com/ (etoy affiliated site)
http://www.salon.com/tech/log/1999/11/30/etoys
http://www.thestandard.com/article/display/0,1151,8225,00.html
http://www.wired.com/news/business/0,1367,32963,00.html
http://www.wired.com/news/politics/0,1283,32936,00.html
http://www.wired.com/news/politics/0,1283,33111,00.html
http://www.wired.com/news/business/0,1367,33159,00.html
http://www.wired.com/news/business/0,1367,33189,00.html
http://news.cnet.com/news/0-1007-200-4720661.html?tag=tp_pr
http://www.wired.com/news/business/0,1367,43883,00.html
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The HOAX DU JOUR is a regular feature of Korova Multimedia. Tune in to
http://www.korova.com/virus/hoax.htm.
D.B. Spalding is an infopreneur and consultant based in Marin County, CA.
Many of his articles can be found on the World Wide Web at
http://www.korova.com.
(C) Copyright 1999 D.B. Spalding. All rights reserved.