Reinhold Grether on 26 Jan 2001 01:04:33 -0000

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[Nettime-bold] European art group files suit in U.S against eToys

[please distribute as far as possible]

European art group files suit in U.S against eToys
By Alice Ratcliffe (Reuters)

ZURICH, Jan 25 (Reuters) - 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. <ETYS.O>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 on-line and winning international
awards for its work in 1996 before eToys, Inc. was even
formed," the complaint alleges. 

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 specialises 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 breifly
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 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 retail company. 

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 share. 

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.\Company

etoy Corp. Sues eToys Inc. For Trademark Infringement

eToys Reports Fiscal Third Quarter Financial Results 

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