Etoy Wants Trademark 'Closure'
4:00 p.m. Jan. 25, 2001 PST
A European Internet artists group called etoy -- with all lower-case letters
-- said on Thursday it has filed a complaint in a U.S.
court against online toy retailer eToys Inc. alleging trademark
The action, filed in the U.S. District Court of Southern California in San
Diego, is the latest shot fired between etoy, an
international artist's collective whose medium is the Internet, and the
U.S.-based online toy retailer.
Etoy insists eToys Inc., which uses a capital T and ends its name in an s,
has muscled in onto the collective's turf on the
Internet. The retailer actually succeeded in shutting down the artist
group's site during the 1999 holiday shopping season.
The complaint, a copy of which was made available to Reuters, alleges eToys,
with its similar name, has used a close imitation
of the registered 'etoy' mark to sell its products and advertise its
services on the Internet.
"Such use is likely to cause consumer confusion, mistake or deception and
infringes on etoy Corporation's rights in its
registered trademark 'etoy'," said the complaint by the artists' group,
whose motto is "leaving reality behind."
Etoy is also seeking to gain control of eToys' domain name.
Etoy, which may be the world's only artists' collective with a business
plan, alleges that because it was around before eToys,
the toy retailer should not be allowed to use a similar name that could be
confused with its own.
"Etoy Corp was actively online and winning international awards for its work
in 1996 before eToys, Inc. was even formed," the
Etoy's lawyer Chris Truax, who filed the complaint on Wednesday, told
Reuters in a telephone interview that "etoy is essentially
staking out their territory for everyone to see." Truax, who specializes in
intellectual property law, called it a "defensive move.
It is not a question of revenge. It is a question of closure," Truax said.
The suit breaks a cease-fire which followed what is known in Internet lore
as the "Toywar." In 1999 the retailer briefly
succeeded in shutting down the etoy artists' Web site, arguing that its
customers might be offended by the site, which contained
what the retailer called profane language and pornography.
The artists group currently features moving cargo containers on its Web site
After the site was shut down, etoy supporters rallied to the artists'
defense, threatening to block the Web retailer's site by
bombarding it with bogus orders.
The battle ended in a sort of truce between the artists and the toy
retailer. The latest lawsuit breaks that truce, and etoy's filing
of legal opposition to eToys trademark registration with the U.S. patent
office on Jan. 10.
An artist who calls himself etoy.ZAI, spokesman and "Chief Executive" of the
artists' group based in Zurich, said it had "tried to
deal with eToys for several months" to no avail before breaking the truce.
"We have to resolve this problem once and for all,"
he told Reuters.
The online retailer (ETYS) is now retrenching its business, with its shares
only a fraction of their former value. The shares
closed at 5/32 on Thursday, down 1/32 or 9 percent on the day, and sharply
below their high of $86 in October 1999.
A spokesman for the retailer in California said the company had no comment
about the lawsuit.
Despite worries about similar names, in the real world it is hard to confuse
etoy, whose members sport weird neon orange
garb and issue directives in a neo-business jargon, with employees for a
The artist group's backers include Japanese venture capitalist Joichi Ito,
who is also one of the group's "shareholders."
Although the shares are not listed on any public exchange and are not backed
by any tangible assets, the collective "went
public" in 1998. Among its other investors were former Austrian Chancellor
Viktor Klima, who bought the ceremonial first
Truax, asked if the filing could be considered as a serious case of
corporate trademark infringment, believes it should.
"This is a 100 percent, serious lawsuit. Etoy is a real entity, and is
highly respected internationally," said Truax.
"They are a real corporation. They are just providing a different product
than most corporations. The people participating in it
certainly seem to be getting their money's worth. They are getting their
entertainment quota," he said.
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