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The etoy Strikes Back 116

Posted by jamie
from the hands-off-my-mark dept.
JakusMinimus was one of several readers to point out that -- note my spelling carefully now -- etoy, the envelope-pushing European art group, has filed a lawsuit against eToys, the money-losing California company. I spoke with etoy's lawyer last night; he said that he has been trying to negotiate with eToys for six months, but that eToys is (not surprisingly) continuing to pursue its trademark on "ETOYS", which etoy (not surprisingly) feels endangers its right to continue using its name. etoy wants to see eToys barred from using that name in business, including using the domain name etoys.com -- basically, it wants the company to change its name. Here's the Reuters story, and here's the etoy press release. My thoughts below.

Is there confusion between the two names? eToys seems to think so, since it got etoy's website taken down in December 1999 for exactly that reason. The site was put back up later, and eToys' legal action halted, mostly because etoy was using its name, and had its website, long before eToys even existed.

And I can especially see why etoy is worried, since eToys has also filed a trademark application on "ETOYS" in the context of providing "interactive and arcade games via a global computer network." Which is, well, pretty darn close to what the artistic group has been doing for the last five years.

So if there's confusion, it really seems like eToys brought this on itself. When it set up in the first place, simply checking for the singular version of its corporate name would seem to me like a gimme. Failure to do so would seem like a clear-cut case of infringement.

Things are a little more confusing than that, though. The trademark that eToys bought was actually registered by an unrelated company in 1990 ("Etna Toys") -- the law starts to give me a headache at this point. Only a lawyer could love the difference between a trademark application and an Intent To Use declaration, I think. The resolution of this one may come down to whether it's appropriate to purchase a trademark of another company without actually purchasing the company itself, or any of its equipment, inventory, etc. In other words, are words themselves, words given legal protection by our government, subject to being bought and sold on the open market?

An interesting question. Not the same question as whether etoy.com and etoys.com should be able to coexist on the same internet despite unreconciliable philosophical differences, but ... an interesting question.

We'll keep you posted on how this one turns out. It's essentially the inverse of the fiasco in late 1999, with the lawsuit (apparently) pointed in the correct chronological order this time. Whether eToys will even exist as a company by the time this suit is resolved is, unfortunately, an open question.

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The etoy Strikes Back

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  • by Anonymous Coward
    Frivolous lawsuits like this are an utter waste of time and money. It's bad enough that eToys had to try to milk some copyright law and bully etoy, and I'm glad that etoy was able to stand up and win. However I have lost all respect for them now that the "little guy" has decided to pull the exact same frivolous bullshit, using the same ambiguous trademark crap that we often see those "big bad corporations" using, and what makes this even more childish is the obvious revenge motive driving the whole case. Frankly, it sickens to me to the core to see such brazen hyprocrisy on Slashdot... apparently bully tactics and ridiculous lawsuits over trivial matters are wrong only depending on who is doing it. If a corporation does it, you all cry bloody murder, but if some childish, self-righteous "little guy" money grubber with a vengeance motive (hey, sound familiar?) wants to try the same shit, he's the hero? And you wonder why the mainstream refuses to take you hypocrites seriously.
  • by Anonymous Coward
    to the time when eToys actually does go bankrupt. The domain name etoys.com (and any similar ones such e-toy.com) is an asset just like the rest that will be disbursed to recoup investor losses. So, another company buys the domain name, and etoy has to go through this all over again? What better opportunity to acquire the domain and oppose the trademark than when eToys is in such a weak position? Move on it now, and make any other corporation considering acquiring the domain weigh the cost of dealing with the negative PR that would be involved, as well as the angry /. effect.
  • by Anonymous Coward
    I say they should put the employees of e-toy and e-toys in the sqaured circle and have them duke it out. WWF could show it on pay-per view although it may be a problem watching it as a bunch of hackers screwed up my direct-tv hcard. Damn hackers, we must keep them out of our banks.
  • by Anonymous Coward
    When eToys filed a trademark infringement suit, Slashdot readers mounted a major DDoS against them, going so far as to post attack scripts on Slashdot. Now etoy is doing the same thing. Fire up those pounder scripts!

    Note that etoy firmly insists they are a real for-profit corporation, so they clearly don't deserve much sympathy. Their Flash-ridden site doesn't count as much of a service to the Slashdot community. On the other hand, eToys engineers contribute to open source projects like mod_perl and Template Toolkit that directly benefit Slashdot development. In fact, eToys is one of the biggest customers of VA Linux, which pays the bills at Slashdot.

    Okay, I was just kidding about DoS'ing them. No one deserves that. But do think about the fact that there are real people - possibly just like you - at both corporations before you jump to conclusions.

  • With EToys trading at around a quarter, I wouldn't be suprised if someone like Toys'R'Us or Amazon.com came along and devoured them just out of pitty. Maybe Etoy should buy them! :-)
  • Yeah...but NSI will hold on to the domain name for at least 6 months after that! :)

  • So, Group A sues B. Wants B to give up rights to name. Worried about confusion.
    Group B sues A. Wants A to give up rights to name. Worried about confusion.

    Isn't this what happened last time?
    About all they did was switch names on the original lawsuit and sides in the court room.


    -----------------------------
    1,2,3,4 Moderation has to Go!
  • by Ross C. Brackett (5878) on Friday January 26, 2001 @02:26PM (#478689) Homepage
    You'd be right if this case was merely two morally equal entities squabbling over IP rights. But it's not. Etoy is old Internet. Etoy was just minding their own, doing the Internet-is-all-commercialized-but-we're-still-a-b unch-of-weird-tech-art-people thing, and then Etoys went "Money+Internet=good" and decided to walk over the good guys. It's so clear cut, it's symbolic. Which is why this lawsuit is important.

    Those of us who remember the Internet of olde and still hold some hope for the future that medium promised need to send a clear message to those who seek to profit through its exploitation:

    WE WERE HERE FIRST, SO FUCK OFF!
  • > WE WERE HERE FIRST, SO FUCK OFF!

    No no, now ask any lawyer, & it/he/she will tell you, ``possession is 9 points of the law."

    eToys tried to take possession away from etoy, & failed.

    eToys now has little or no money. They're facing creditors. Time for etoy to hire a lawyer & win the war.

    After all, etoy still has possession.

    Geoff
  • I have another site at 'stupendousbadass.org' which will soon be pointed to by 'stupendousbadass.com' as well. None of this is cybersquatting. Cybersquatting is when you purchase a domain name for the sole purpose of selling it at a profit.

    But you will be cutting the namespace by half. That's not good. We're dealing with a limited and shared resource here.

    cheers,
    sklein

  • by mjackso1 (14092) <mjackson2317NO@SPAMyahoo.com> on Friday January 26, 2001 @01:30PM (#478692)
    What can you say? They're artists. Apparently the medium of choice for the art of the times is the lawsuit.
    Study carefully the authoritative stride of the lawyer as he approaches the edifice of Justice. Note with admiration the loving attention lavished upon each brief. Imagine the chagrin of the assembled when the plaintiff reveals that under the robe, the judge is wearing no pants.

  • [I'm giving them long names to make them easy to read.. given my spelling it's the least I can do]
    E-Toys Dot Com Co. was basicly worryed about the diffrence between E-Toys Dot Com Co and etoy projects and arts.

    etoy projects and arts however was in busness first and has been in the Internet, games, etc feald longer than E-Toys Dot Com Co was...

    Also the trademark E-Toys Dot Com Co was not in the area etoy projects and arts was.

    E??? toys co did not approch the market etoy projects and artists did... They were not a "DotCom" or "DotOrg" or "Dot" anything...

    However E-Toys Dot Com Co is at least expressing intrest in breaking into the arena where etoy projects and artists lives...

    Given this would ferther irritate the situation it is up to etoy projects and artists to take action and force E-Toys Dot Com Co to get a new name and leave them alone.

    On this same issue.. E-Toys Dot Com Co is losing money like many Dot Coms and may die.. however as has been proven.. If it's not dead yet you can often keep it alive with expensive medication.. in this case.. venture capital...
    And rember kiddies.. there is a sucker born every min...
  • Domain names weren't inteded to be human readable.. Hence the ability to reg similer names.

    When you go and get a busness name they cross check automaticly for similer names. It's not that hard to do... Domain names don't do it becouse it shouldn't be nessisary...

    If you want to use your domain name as a busness mark you should do the cross checking yourself (as etoys Dot Com co clearly didn't do) and conferm that the name isn't allready in use.

    It's pricy but if you want to do busness this way you need to grab up the smiler domains etc..

    The obveous plural and non plural varents should have been checked early on and reged..

    Anyway.. if you grab a domain after the fact then yeah you place your bumm in the crosshairs of some idiot...

    Just a bit of trivia... anyone rember the mtv.com situation?
    basicly a Video DJ at MTV regged the domain.. when he left mtv they wanted him to give up the domain.

    See the problem? It became known as his machine.. not MTVs system.. they weren't even on the Internet yet...

    Instead of trying to install a real name network and use it.. retrofitting the domain system is a problem...

    I like how Netscape preforms a search... enter "mtv" and it searches for mtv.. Thats how it should be...
  • But B won the first becouse it was around first..
    A is trying to ferther confuse by entering into the same area B is known for...
  • by Felinoid (16872)
    Etoy spammed Slashdot posters presenting support for etoy asking for help on the DoS..
    I didn't find this one bit ammusing when I got such e-mail... (Yes I supported them then and I support them now.. just not in spamming or DoS attacks)

    So basicly Etoy picked it's help from amoung Slashdot posters.. I can only hope the majority of Slashdotters did not take part...

    They hurt etoys.. yes.. but there are a lot of Slashdotters with a lot of band with...
    As the Slashdot effect has proven it only takes a precentage of Slashdotters to do the damage by accadent.. it should take a smaller precentile to do it intentionally...

    I don't know what Slashdotters at larg did.. I know I didn't take part and I know enough did to cripple E-toys dot com...

    In retrospect I was more annoyed about the spam than I was the DoS attack... The victom of the DoS was E-Toys... Ohhhh .. worlds smallest violen playing my heart bleads for you.. I was more mad that I got spam...
  • Also of interest to the Slashdot crowd: Mindstorms are cheap [etoys.com]. It feels sort of vulture-like, but $100 for a Robotics Invention System is pretty good. If you're ordering, balance against the possibility of them going bankrupt before they ship it.

  • In other words, are words themselves, words given legal protection by our government, subject to being bought and sold on the open market?


    Sure, why not? An asset is an asset is an asset.
  • Yes, but see, the toy store's original lawsuit proves that they believe that there is cause for consumer confusion. Therefore, only one can have the trademark. And Etoy had it first.
  • No. There was a decision that legal protection should be given to trademarks. Before then, it was not an asset.

    There was a decision that copyright should be given legal protection. Before then, you couldn't own a copyright, and it was not an asset.

    There are many kinds of assets that are only assets because the legal system has decided they should be.
  • That's not cybersquatting. I run a website at wonko.com, but I also own the domain 'wonkoslice.com', which points to the same site. I have another site at 'stupendousbadass.org' which will soon be pointed to by 'stupendousbadass.com' as well. None of this is cybersquatting. Cybersquatting is when you purchase a domain name for the sole purpose of selling it at a profit.

    --

  • Well given that eToys' shares are currently worth about 25 cents and they just announced [reuters.com] third quarter losses of about 52 cents a share - much larger than predicted - it doesn't look like eToys is much longer for this world. Given that, it may seem pointless and vindictive for etoy to be going after them at this point.

    But consider this: when eToys goes bankrupt, its assets will be put up for sale. Like most dotcoms, the main asset of this company is likely their domain name. If another company buys the domain, there is always the chance that with fresh money and fresh lawyers, they once again pursue the attack on etoy.

    By counter attacking now, etoy is in a good position to protect themselves once and for all. First of all, with eToys on the financial ropes, they will have less money to throw at lawyers to defend themselves. Secondly, and most importantly, if etoy wins, they will prevent many potential future headaches for themselves. Even if eToys goes down before the suit is settled, the legal cloud hovering over the etoys.com domain "property" will make it much less attractive to prospective buyers.

    Trickster Coyote
    Ignore that man behind the curtain.
  • I bought some Christmas presents from eToys this year. They were in stock, priced reasonably and shipped on time.

    On the other hand, eToy sends me a crapload of spam. That's all they do as far as I know. I say F&*% ETOY! They get no sympathy from me.

    P.S. I agree that eToys shouldn't be trying to get the etoy domain name, but that's been said here about a zillion times over the past however many months or years so there's no real reason to say it again.

  • Do you have any idea how much it hurts to see a community that you are part of (Slashdot/Linux/Open Source) shouting outrageous slander against you...
    If they get slandered then they can always take them to court -- recursive lawsuits! :->
    --
    You think being a MIB is all voodoo mind control? You should see the paperwork!
  • shit. if that happened, i'd make t-shirts: "I helped kill slashdot." I'd put it on my resume too.
    LOL! Where would it go on your resume -- under "achievements" or "hobbies"?
    --
    You think being a MIB is all voodoo mind control? You should see the paperwork!
  • I kept hearing SNL's Subliminal Man when I read the following:
    apparently bully tactics (Microsoft) and ridiculous lawsuits over trivial matters (Microsoft) are wrong only depending on who is doing it. (Microsoft) If a corporation (Microsoft) does it, you all cry bloody murder, (Microsoft)
    Hypocrisy?!? Slashdot?!? Nope, no hypocrisy here!!! :->
    --
    You think being a MIB is all voodoo mind control? You should see the paperwork!
  • It's called it doesn't matter because it's indendently published art. It's wholly experience, not usability that counts.

    ----
  • Their failure had nothing to do with their overzealous attack on e-toy. They deserve any and all punishment coming to them from e-toy. Only an idiot would let an attack like that go without hitting back.

    This company is a classic example of a .com whose only reason for existance was to rip off as many investors as possible. If they had just stuck with that I would'nt care so what if a few suckers lost all their money and the CEOs raked in. But to attack other people just to attack them over something as stupid as e-toy remains a truly evil act. Evil must be punished otherwise it multiplies.
  • Revenge is justified this time. As far as wasting the court's time well too freaking bad. The corporations waste the courts time so why shouln't the victims of those same corporations have the same right. Besides what is the alternative if you have been screwed over good by a sleazy corporation like E-toys? You can't break their legs you have to take them to court.

    E-toys brought this on themselves. They deserve everything they get.
  • Actually I just thought of an alternative to suing. You could unionize their employees. That would truly piss them off and maybe even get some severance pay some of the employees who will lose their jobs.
  • The sleazy part was suing people for nothing. You think it's easy to be sued by a pack of hungry corporate lawyers? You have any idea of how much anguish was visited on people that were sued not to mention how much it cost them?

    So what if the parents got angry all they had to tell them was that they were going to the wrong place.
  • That's crap. It cost e-toy and the people involved with them plenty. You seem to underestimate the mental anguish a lawsuit by a giant corporation with billions dollars causes. Even if as you say e-toys paid their lawyers fees how did they compensate them for the stress and the sleepless nights.

    It's not slander if it's true. If you do crappy sleazy things expect to get yelled at and critizied (at a minimum). Sorry bub that's life. As a corporation you get a ton of benefits and a relatively free ride from the legal and political system. A bunch of people yelling at you because you chose to act stupid is not mush of a burden. As for the Dos attacks well sorry I may not like them but you are not the only victims and there is very little anybody can do (ask zdnet and microsoft).
  • "I say wait it out and pick up some Starwars toys at the closing sale." They might get Starwars toys, but the name will go to the highest bidder.
  • Etoy.com was there first: if Etoys.com didn't like it then they should have renamed their domain to something else. For instance if a goatsex company named "goastee.cx"; for examples sake, opened up and then sued goatse.cx for the pic they have on their site showing humans instead of goats. Who should lose what? Evil motives? Maybe not; but infringing on someones FIRST post isn't cool either.
  • the ironic thing is that if this case law existed a year and a half ago, eToys might've been able to use it as ammunition against etoy.
  • Ok, wasn't it recently ruled that you couldn't buy and sell Domain names like realestate? If so, would the same thing apply to Trademarks or any similar concept? And if not, what is the legal difference between the two? Why would one not be able to register a bunch of trademarks and then offer to sell them like realestate? Why not for domain names? Maybe I'm just feeble minded, but I don't see an appreciable difference between the two concepts.

    Kintanon
  • Their failure is enough punishment.

    No it's not. It's not punishment at all, it's the direct result of their idiotic business plan. They have not yet been punished for going after an independant website which posed no threat to them, was not in their field (so trademark dilution wouldn't apply), on an illegitimate trademark claim anyway, and blatently for only the Christmas season (both to get publicity, and try to shut down misdirection over the holidays, their biggest sales season in theory). They probably never will be punished. So pardon me if I don't think they've caught enough crap. Corporate officers and shareholders should be held liable for this sort of thing. When they cause financial harm to innocent people, they should be punished.


    --
  • That's not cybersquatting.

    You're right. I believe that the proper term for this kind of trickery is domain name hijacking. That is, they took a name which rightfully belongs to and is in use by someone else and had the DNS records changed to point to a different site. If you ask me this is an even lower form sleaze than cyber-squatting. At least with the cyber-squatters you can just buy them off.
    _____________

  • Sorry my subject wasn't more completely spelled out for your sake. Let me finish it. "Two wrongs don't make a right."
  • A. I hate to shatter your delusions, but you're not the spokesperson speak for the O-G Old Scool K-Rad Internet. You are not "we" and I am not "they." So spare your rabble-rousing bullshit.

    B. This isn't about 0ld 5k3wl vs. Big Evil Corporation, as much as that false dichotomy makes the world easier for you to understand.

    C. There's still the issue of domain. As many many people pointed out when the suit went the other way around, eToys.com would never get confused with etoy.com

    D. Moral equality doesn't fucking matter under the law. The law matters under the law, because everyone has their own code of morality, but there's only one code of law.
  • Awesome, so I can go around murdering rich people?
  • by wuice (71668) on Friday January 26, 2001 @01:24PM (#478722) Homepage
    Sounds like a ridiculous lawsuit filed to get revenge over another ridiculous lawsuit. Revenge-based crap like this wastes the court's time, and one thing our court system doesn't have an excess of is free time. I hope the /. crew doesn't become a fan of these types of lawsuits just because now it's the underdog filing one. I don't see what the big deal is, anyway. Trademarks have domains, and I think it's pretty safe to say that these two entities are in fairly different domains.
  • The domains are getting closer together; Remember, eToys "has also filed a trademark application on "ETOYS" in the context of providing "interactive and arcade games via a global computer network." Get thee to etoy.com. Look around. That could be called 'interactive', especially by a weenie lawyer.

    If its granted, it'll only be a matter of time before whoever buys the TM from eToys during the bankruptcy goes after them again. I'd say this is a 'Spank em before they spank you'

    `Sides, when you have been wronged and the law entitles you to revenge, not damages, you use it.
  • Come on, eToys is at fault here they spent some much time and money to shut etoy down they forgot to make money. They even had etoy.com shut down for awhile.
    How about if they just doe quietly and no one gets sued.
  • by bruns (75399)
    Funny how shit comes back to bite you in the ass.

    Maybe other companies who think like EToys should take a lesson from this. The little guy may not be able to fight you now, but whats gonna happen when you've just blown 84 mil and are about to go belly up :)

    I give EToy two thumbs up for returning the favor. After all, one good screw deserves another.
  • They could just wait a few more months, after which time EToys will be out of business completely, just like all the other lame-brained "dot com" ideas. Problem solved!
  • Maybe they'll get the customer database.

    Heh, yeah, there's likely to be plenty of overlap between the etoy and EToys customers. They're practically the same demographic!

  • Yes. And in this case, it also happens to be potential trademark infrigement on etoy.
  • by Fnkmaster (89084) on Friday January 26, 2001 @03:10PM (#478729)
    Actually, I disagree strongly. I agree that the trademarks seem like they're in different domains to me. However, I strongly encourage organizations that have been the victim of IP bullying to fight back. A couple of well-placed wins and some punitive measures will do a lot to get rid of the original frivolous lawsuits from the big eToys.com-types that smack people around with their lawyers. If they learn that there are consequences, they will lay off the fucking frivolous intimidation.
  • shit. if that happened, i'd make t-shirts: "I helped kill slashdot." I'd put it on my resume too. If Jon Katz became a homeless bum, shit...there'd be dancing in the streets.
  • by niekze (96793)
    Payback is a BITCH ain't it.
  • Of course we all know that the world would be a better place without these silly lawsuits, but if there's a chance to beat a corporate websquatter, I say take it©©©

    What I'd like much more is if some lawyer would be hold responsible for the "under penalty of perjury" part of the DMCA for making false allegations about copyrighted material ¥like the DeCSS vs© DeCSS case© That would be really nice and would also make some guys think twice before sending bulk-'cease and desist' letters to ISPs©
    --------------------------------------
  • *CLAP* *CLAP* *CLAP* Well said. You should probably go to THIS website: www.freespeechfunhouse.com
    ---------------------- ------------
  • OK, but what if nVidia actually was infringing on 3dfx's patents? nVidia made a lot of money, and 3dfx, well, got bought by nVidia. I don't know enough about the patents in question to really judge, but if 3dfx had a legitimate claim, but wasn't able to get it enforced, I would say that justice had not been served.
  • But it's not a "ridiculous lawsuit" - it's envelope-pushing performance art!

  • And I'll jump to whatever conclusions I want, fag.

    I'll bet etoy is really proud to have your support.

  • Etoy was just minding their own, doing the Internet-is-all-commercialized-but-we're-still-a-b unch-of-weird-tech-art-people thing, and then Etoys went "Money+Internet=good" and decided to walk over the good guys.

    You are so wrong. Etoy was well aware of the traffic they were receiving from typos and confusion, and took advantage of it with pictures of toys on their front page, as well as their whole "IPO" thing. eToys did nothing to them until they received angry letters from parents whose children had gone to the etoy site and found some S&M pictures there.

    You assume that there was some kind of evil motive for eToys, but it's just not the case.

  • Besides what is the alternative if you have been screwed over good by a sleazy corporation like E-toys?

    Which part is the sleazy part? The support of Toys for Tots? The contributions to open source projects like mod_perl? (You know, the thing that runs this site...)

    eToys would never have bothered to do anything with etoy if they hadn't received angry letters from parents complaining about the etoy site. Maybe you should check your assumptions.

  • They have not yet been punished for going after an independant website which posed no threat to them, was not in their field (so trademark dilution wouldn't apply), on an illegitimate trademark claim anyway, and blatently for only the Christmas season (both to get publicity, and try to shut down misdirection over the holidays, their biggest sales season in theory).

    Where do you get these crackpot theories from? You sound like a conspiracy junkie. eToys had a very simple reason for going after etoy: they were getting angry complaints from parents whose children were getting onto etoy.com by mistake and found some S&M pictures there. Since etoy wasn't willing to do anything to help the situation (the asked for more money than eToys was willing to pay them), they took it to court. You may not agree with that move, but the evil motives you're making up are ridiculous.

  • Payback is a BITCH ain't it.

    It sure is. And when VA Linux can't afford to pay the bills for Slashdot anymore because they lost one of their biggest clients (eToys), you can be proud of the fact that you helped make it happen.

  • Whether VA Linux will even exist as a company by the time this suit is resolved so Slashdot can report the results is, unfortunately, also an open question

    It doesn't really help much to put one of VA Linux's biggest clients (eToys) out of business. For all we know, they might owe VA Linux (and thus Slashdot) some money right now.

  • Yeah, etoy.com is a pretty weak site. Only on the Internet can a bunch of guys with ugly Flash animations and a lawyer get taken seriously as artists.
  • Incidentally, eToys' engineers contribute to some open source projects, like mod_perl. I don't see etoy contributing much to the community.
  • You think it's easy to be sued by a pack of hungry corporate lawyers?

    Apparently etoy thinks it's a good idea, since they're doing it.

    You have any idea of how much anguish was visited on people that were sued not to mention how much it cost them?

    Yes, I do. It cost them nothing, since eToys paid all of their legal bills. Do you have any idea how much it hurts to see a community that you are part of (Slashdot/Linux/Open Source) shouting outrageous slander against you and mounting hundreds of DoS attacks against you?

  • At this time, they are sold out.

    Darn Slashdot effect. :) I guess it applies to inventory as well.
  • And you can bet there will be a huge squawk here on /. when they go to sell their customer list...

  • Actually, Apple computer settled the case with Apple Corps in 1990 by agreeing to stay out of the music recording business. What's interesting is, with Apple (computer)'s new iTunes software and cd-r drives, one could argue that Apple has emerged onto the music recording scene. That case differs, AFAICS, by virtue of it's participants being in different industries. It's a case of Apples and oranges, ha ha.
  • Is that the same "judge" Kaplan that ignored the few protections of the DMCA, the rest of the Copyright Act (Title 17 of the US Code), and the Constitution (which he was SWORN to uphold) by rendering judgement against the DeCSS defendants?
  • I still do have a case.

    You missed a very important point. Even though Mattel paid me a judgment, Mattel kept going with their baseless libel claim.

    Mattel tried to use a baseless libel claim and threat of continued litigation to try to shut me up.

    I asked them to drop their libel claim and their response was that "we will continue to litigate."

    How would you suggest that large corporations be prevented from this type of abuse? In the case of Mattel they have over 134 cases listed in one of the 94 federal courts.

    BTW. The courts , generally, really only let us punish by taking money; no public flogging.

  • by www.sorehands.com (142825) on Friday January 26, 2001 @01:44PM (#478750) Homepage
    If you just give in to these bullies, they win.

    What needs to be done, is to fight back and fight back hard. A couple of large judgments against these bullies discourage other potential bullies.

    That is why I am fighting against Mattel -- to stop them from doing this to others!

  • Synopsis: trademarks are abusing the web

    A trademark comes out of the medieval guild system, the 'mark' of a master craftsman. Basically a guarantee of quality.

    Guilds were of course utterly destroyed by the industrial revolution which promised all the same stuff cheaper despite their best attempts to get governments to outlaw the anti-competitive 'pirate' factorys. (satire added)

    A trademark is by definition therefore not just any mark, but a unique mark. i.e. typing 1$ on a piece of paper does not a dollar make. Think unique design like a branding iron ('brand name recognition.')

    What is a a url? A word name that out in the big internet phone book equates to number longer than my home phone (generally).

    If a company prevents me from using their brand name in casual conversation, product review, etc, it is a simple conflict between my freedom of speach and the 'brand' monopoly. Reasonably i can't yell fire in a crowded theatre, but outside of safty concerns all else is fair game. Likewise the point of a brand is both to protect a craftsmans interests, and for everyone else, to provide a unique and authoritative way to refer to a specific product.

    The main simularity to a brand is that the names are still 'unique'... but that fails... to properly indicate a brand in a text i include 'TM.' Url's have no ability to indicate that a given reference is to the trademark holder's website, a spoof site, etc. It is not possible to include the particular look of a trademark. Even the TM for the frowny face,' :-( ' isn't for the 3 characters, is for a logo, an image that looks like that. Url are completely unable to display the graphical logo, that's on the homepage. A Url cannot display the flair that is the coca-cola tm, so why should it be treated as a mark? In text you include the TM, until Coca-Cola.com is Coca-ColaTM.com or better Coca-Coal.TM why would anyone assume this is the 'brands' homepage (I submit, only because we've done so before).

    The short and simple of my point is that there is not enough meat in a url to realistically assume that any url on the anoymous internet is a 'brand', and trademarks should not be given any special weight until there is a dotTM extension which is authoritative to a TM database.

    Seems reasonable to me

  • I have another site at 'stupendousbadass.org' which will soon be pointed to by 'stupendousbadass.com' as well.
    Similarly, slashdot.com points to slashdot.org

    Care about freedom?
  • Alas no. If etoys is a trademark then the toy store had it first. Even though it may not feel right to you, the folks who registered the mark in 1990 do have the right to sell there interests in it, and that includes being well before etoy.

    But even so, they didn't have it as a mark for avante garde art projects, and so they would have to prove a conflict to sue etoy.

    However, the reverse is true. Etoy would have to prove the same conflict. With etoys having an older mark, etoy would have to show that etoys expanded their business and started confusing the public about etoy. I'm not sure they did this, frankly, other than by suing. I doubt a reasonable person would confuse the two.

    Of course if etoys is a generic term for toys, then etoys can't sue anybody over using it for toys, and nobody can sue them over using it for toys.

    A generic term can be a TM in another field. Apple is a generic term in the fruit business, but a trademark in the computer business. Apple computer can't sue any apple growers for using the term in the fruit business, nobody can.
  • The standard the law uses is whether the public might become confused because of two conflicting marks. Ie. If members of the public see "etoy" and might wonder, "Oh, is that related to the online toy vendor?" then there is confusion.

    Of course it has to be legitimate confusion. For example, if the public would look and say "Oh, no, this is an art group they don't sell toys" then there is no confusion because they are in different fields. Thus Apple Computer and Apple Auto Glass can and do co-exist. However, if Apple Computer were to try to repair windshields or Apple Auto Glass sell computers, it could be a problem, as it was when Apple Records raised questions about Apple Computers which could be used as musical instruments.

    So even though eToys, in purchasing the Etna etoys mark, would have prior claim if the mark had not been invalidated for being generic, it wouldn't matter as the marks are different.

    But etoys made a mistake when they sued etoy, for they stated that they felt there was confusion. Now etoy doesn't have to prove confusion nearly so much.

    But if etoys is a generic term it means anybody can use it, so they may not have much luck.
  • Anyone doubting etoys tactics or mindset, the letter below was a letter sent "anonymously" by some dumbshit at etoys.com to an activist. Read those headers. The origin resolves to etoys firewall.

    Received: from hotmail.com (law2-f119.HOTMAIL.com [216.32.181.119]) by mailer.merz-akademie.de with SMTP (Microsoft Exchange Internet Mail Service Version 5.5.1960.3)id W42SCM2G; Mon, 20 Dec 1999 18:27:09 +0100
    Received: (qmail 25683 invoked by uid 0); 20 Dec 1999 17:39:31 -0000
    Received: from 206.132.100.130 by www.hotmail.com with HTTP;Mon, 20 Dec 1999 09:39:31 PST
    Message-ID:
    X-Originating-IP: [206.132.100.130]
    From: "Ken Hurley"
    To: alvar.freude@merz-akademie.de
    Subject: hello there..
    Date: Mon, 20 Dec 1999 12:39:31 EST
    Mime-Version: 1.0
    Content-Type: text/plain; format=flowed

    Hello my little friend..

    Build any new scripts lately? I suggest for you to get the hell out of dodge before the neighbors find out. Mrs Robinson and Mr Atlers are not nice people.

    Have a great holiday..
    B1g_daddE

    ------------
    Scary huh?

    Shayne
  • Corporate America is pretty stupid

    They break all the laws so they can get what they want, and cry when they don't

    but hey, what else does a company do? I don't know about you guys, but I'm really getting sick and tired of the little guys getting screwed by these brain dead companies

    I really hope these guys win, not because the entire idea of ecommerce is sickening ... but because it would set a clear example, of when a company should and shouldn't push it

    one last thing

    By etoys not allowing some else to use words SIMILAR to etoys, a violation of the 1st admendment?

    oh wait ... thanks to the whole DeCSS ... we don't have that any more right?

  • etoy has a link to havenco on their homepage. I could not find any other info.
  • For those of you who don't know -- back in the late 70's, the Beatles' Apple Records filed suit against Apple Computer. Apple Computer, if I remember correctly, won the suit. The courts decided that their domain was entirely different, and the fact that Apple Records is based in Europe is significant.

    It seems to me this suit acts as precedent for the etoys suit. Their domains are entirely different (art and toys; computers and records) and they're based in different countries. Different continents, even!

    However... In the day of the Internet, continents just don't matter the same way. I'd be confused by eToys or etoys. I think the first to the name gets it. If that was the European company.. Than eToys was just *stupid* in not researching that fact.

    Who knows what will happen. Does it really matter for eToys? They're not even in the black.. :-)
  • You know, I'll grant the point of the political scaremongers who insist that American education is not all that it could be. Nonetheless, I think most of us are educated enough to know the difference between a pluralized word and one which is not.

    For example, if I said, "Go to my website and buy bananas! It's at http://www.bananas.com!", do you think it is more likely that you would A) Visit www.bananas.com; or B) Screw up, visit www.banana.com, follow some links, end up at a completely unrelated personal homepage for a 14 year old Malaysian girl, get discouraged, and refuse to do business with me, ever again?

    If the answer is B), then, for the first time in his life, George W. Bush may be right: we really do need some education reform.
  • I suspect that having an outstanding lawsuit against eToys might give etoy.com a claim on assests during the bankruptcy proceedings. Maybe they'll get the customer database.
  • by jonfromspace (179394) <jonwilkins@gmai[ ]om ['l.c' in gap]> on Friday January 26, 2001 @01:20PM (#478761)
    These folks at etoy need to relax... according to etoys [cnn.com], the website only has enough $ to opperate till March. Man, they LOST 84 million in the last quarter alone!

    I say wait it out and pick up some Starwars toys at the closing sale.
  • "I'm getting sick of people going after eToys. They had a bad stay on the internet. It sickens me and just about anyone else on /. about people suing over names and such. Please just leave eToys alone. Their failure is enough punishment."

    Well, what if some Big Company (tm) with Deep Pockets (tm) had bought out eToys? There is an important legal precedent that needs to be set here that will make it more difficult for corporate interests to abuse the system. And the legal interests should also be resolved so that it is perfectly clear to all concerned.

    Leaving it fuzzy is what lawyers thrive on. Leaving it fuzzy will leave the door open for more stupid stuff like this in the future. Therefore, although eToys may be getting the short end of the stick, this is a stick they tried to use agains others. in this context we need to set an example and we need to close the door.

  • Ahhh, wouldn't be the first time.

    Back when nvidia was the new kid on the 3D Accelerated card block, 3DfX sued them for alleged patent infringements. It was a serious charge back then - big companies can kill little companies with petty litigation regardless of its validity. I know I was fuming because I had just purchased a couple TNT cards because they blew the doors off of Voodoo2 (at least for Quake2). I didn't want to find myself with an unsupported chipset because some behemoth steamrolled the chip maker.

    Fast forward a few years... nvidia pretty much has dominated the high end spectrum of fast 3D cards for the consumer market. 3Dfx is having a terrible time just staying afloat. They're having trouble stemming the flow of red ink. And what happens? nVidia hits them with a patent infringement lawsuit. 3dfx, of course, vowed to vigorously defend itself... but really they just could not afford the cost of that sort of legal battle.

    A few weeks later, 3dfx files for chapter 11 protection. We all sort of jumped up and down shouting Serves 'em right!, but it was really just another example of how corporations pick on one another.

  • lawyer: 'your honor, etoys has been using etoy's name since 199x, causing much confusion.'

    judge: 'which one?'

    lawyer: 'etoy's'.

    judge: 'er, is that etoys or etoy's?'

    lawyer: 'etoy's.'

    judge: '...wait, which one are you talking about?'

    lawyer: 'i rest my case, your honor.'

    eudas
  • it usually takes a few more than two.

    eudas
  • as the ancient greeks put it, 'right and wrong are only in question between equals in power.'

    eudas
  • My name is Jeffrey. The guy down the street (Geoffrey) is suing me for registering the domain name jeffrey.com - his case is that people will spell his name like mine and go to the wrong site. He's also mad about jeff.com (also registered to me) because people often shorten his name to Geoff, but that gets mis-spelled often too.

    Does this sound stupid to you? Of course it does. It's the same thing as what the two companies here are doing. Note: THIS IS NOT A TRUE STORY!

    My karma's bigger than yours!

  • Having looked at the arguments behind the domain name situation, I reached a logical conclusion. It is my considered and informed opinion, that we arrived here because of one main cause.

    The authorities are deliberately managing system, so that domain names are not compatible to trademarks. Though they know how to make them compatible, do not do so - for reasons I shall not go into here. Needless to say, reasons based on money and power.

    You will see in just the USA alone that there are 1685 trademarks that contain the word "toy". You can find them listed at: USPTO [uspto.gov].

    There are also very many thousands of trademarks, that use the word "toy", in 200 other countries.

    It is logical, therefore, that they ALL cannot be toy.com or similar, (etoy, eToys etc.) - else they would "infringe" upon each other.

    In legal terms, it is also unfair competition that one should be allowed to use their name and ALL the others not.

    BUT - authorities know the answer, allowing all trademarks to use their name on the Internet. I put this solution to USPTO and DoC - they do not deny it will solve problem. Basically, an identifier, class and country code are ESSENTIAL to identify trademarks.

    All these cases, in the courts and before WIPO, are based on lies and propaganda. I am amazed so many intelligent people have been taken in. Consumer confusion is an obvious lie, used to take away the domain. They all cannot have their name - nearly ALL visitors are going to arrive at wrong location. So they are going to be "confused" anyway.

    Please visit my site WIPO.org.uk [wipo.org.uk] to see the some of the laws they break.

    WIPO.org.uk is the World Intellectual Piracy Organization.

    Not associated with the World Intellectual Property Organization (WIPO.org)
  • is that a first for /.?
  • by sulli (195030)
    From the Industry Standard today: [thestandard.com]

    Meanwhile, eToys has plunged 55 percent, to $12.50, as the company effectively announced its demise. The company stated it is laying off all 293 of its remaining employees, effective April 6. The company reiterated that it anticipates its current cash - cash equivalents and cash that may be generated from operations - will be sufficient to meet its anticipated cash needs until approximately March 31. But, the company says, "there can be no assurance in this regard." In order to continue operations in 2001, the company said it would require an additional, substantial capital infusion. EToys said it does not believe additional capital will become available to the company.

    Of course, I must wonder what that $12.50 buys!

  • trademark law says that if you don't actively protect your trademark, you lose it. it doesn't matter that eToys will go out of business in the near future, etoy must protect its trademark. though in truth, I think they're just trying to make a point.
  • I know someone who patented /. a long time ago. This site is history! Hahahaha!
  • Now why didn't etoy sue etoyS during the Christmas season and get them shut down during the holiday sales season? Sigh... if only it were 2 months ago that this happened.
  • That reminds me of the lawsuit that Robert Smigel, the creator of Triumph the Insult Comic Dog from Conan O'Brien, had against pets.com. Smigel said pets.com copied his trademarked dog puppet. Pets.com countersued saying that Smigel had tarnished the 'loving and sweet' pets.com sockpuppet by comparing it to the 'lewd and disgusting' insult comic dog. Talk about ridiculous revenge lawsuits. But, I don't think this case is a 'revenge' lawsuit, since etoy existed way before eToys did.
  • by thex23 (206256) on Friday January 26, 2001 @03:36PM (#478775) Homepage
    I'd like to start off by saying something which might not sound right to a lot of you: corporations are not people. I know you've been brainwashed by the legal "entity" and "body" metaphors for what a company is, but when you get right down to it, its a bunch of people in a specific culture, a complex system of political, economic, and personal relationships.

    So to use the phrase "big bad corporation" is a sign that we have not identified the problem. The issue isn't the fact that there is a thing called a corporation, it's that there is an entire culture within and without the people of that corporation that compels them to behave a certain way. Success these days is getting harder to measure, if the dot-com stupidity is any kind of lesson. The mantra of "value for shareholders" belies a simplistic conception of the relationships that exist between the people in the company and the people outside of it.

    As much as PR people would like you to believe there is such thing as The Authoritative Voice of The Company, there is only inhuman propaganda that seeks to distort facts to its advantage. Every one of them is just fulfilling a role that is expected of a "professional", and nobody cares about anything outside of that because it isn't their job to. Ethics, in the greater sense, is dead.

    Frivilous lawsuits are a behaviour, and one that the system rewards on a daily basis. Law is the new battleground, where only ideas matter, and actual physical assets are secondary. To buy a word is insanity (I want "the"), but we are edging closer and closer to that insanity every day. I wouldn't fault etoy for attacking eToys, they are just following Sun Tzu's advice: "attack where you are strong and the enemy is weak".

    The ability to abstract is important. The inability to see things for what they are is killing us. We believe anything that confirms our previous views. We disbelieve anything that requires introspection, dialogue, and genuine selflessness to explore.

    Corporations are the new power in the world. Forget about what you've been told about democracy: the power to direct the energy of the human population lies in the hands of the elite. This has been true for thousands of years, and has never been otherwise (except for a brief time in Spain...). The fact that one class of elite has been usurped by another, over and over, century after century, is just detail. The new elite is establishing itself on the amoral ground of Law, and this is where the power will flow from.

    From Antigua, from Singapore, from offshore. The fight is not with each other (ie: company A vs. company B), but for the dominance of the new paradigm: the corporate "We" over the democratic "We".

    Play the game. Surrender to your greed, your hate. Join the Dark Side. You have no idea of its power...


    We thieves, we liars, we vandals, and poets. Networked agents of Cthulhu Borealis.

  • by atrowe (209484) on Friday January 26, 2001 @01:37PM (#478777)
    "they LOST 84 million in the last quarter alone!"

    They must have adopted the Amazon.com business model.

  • by b1t r0t (216468) on Friday January 26, 2001 @01:52PM (#478779)
    Beware of who you kick when they're down, because they might decide kick you right back when you're down!
  • by BananaBoht (221296) on Friday January 26, 2001 @01:32PM (#478780)
    I'm getting sick of people going after eToys. They had a bad stay on the internet. It sickens me and just about anyone else on /. about people suing over names and such. Please just leave eToys alone. Their failure is enough punishment.
  • by mikethegeek (257172) <blair&NOwcmifm,comSPAM> on Friday January 26, 2001 @02:47PM (#478782) Homepage
    eToys showed their asses last year when they got some "judge" Kaplan to basically prevent Etoy from being able to have their website up during the Christmas sales season. eToys then dropped their suit (probably when they realized they'd ultimately lose).

    Now that eToys is tottering on going titsup.com (as The Register puts it) I think it's only poetic justice that it will be Etoy driving a nail in the coffin. It makes sense on their part to try to help kill eToys, who could restart their suit at a future date.
  • by TDScott (260197) on Friday January 26, 2001 @01:19PM (#478784)

    EToys have registered e-toy.com to point to their web site - that's cybersquatting, I believe, as well as trademark infringement.

    EToys don't have a leg to stand on here, I think...

  • Ahh, but please note that this is Etoys (plural) registering E-Toy.com (singular). I do suppose you're right though, in saying it's not cybersquatting... more like typo squatting.

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