eToys vs etoy

The giant American toy retailer has forced a group of electronic artists to give up their domain name. But now they're fighting back
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The Independent Online

In the run-up to Christmas, one online retailer seems to have suffered from afestive spirit bypass. eToys, which operates from the etoys.com domain, has taken exception to the activities of itsclose neighbour etoy.com -- home to a group of European electronic artists based in Zurich. But rather than banging onthe fire wall and asking it to keep the noise down, eToys has taken etoy to court for dilution and infringement of itstrademark as well as unfair competition.

In the run-up to Christmas, one online retailer seems to have suffered from afestive spirit bypass. eToys, which operates from the etoys.com domain, has taken exception to the activities of itsclose neighbour etoy.com -- home to a group of European electronic artists based in Zurich. But rather than banging onthe fire wall and asking it to keep the noise down, eToys has taken etoy to court for dilution and infringement of itstrademark as well as unfair competition.

eToys was concerned that careless customers were missing the "s" from theend of its name and ending up in the confusing virtual world of etoy, which, it claims, contained "hateful rhetoric andobscene images", and even "hardcore pornography". etoy claims that the only obscenity on its website was an order on oneof the pages to "get the fucking Flash plugin" - visible for a number of weeks before being replaced with acensored version.

"They say that we are domain-name squatters and that we try to increase our profit from theirincreased holiday traffic," says Zai, of etoy. "If people forget the 's' at the end of eToys, that is not our problem.It's their problem that they didn't pay enough attention to this problem before they built up this huge company."

What at first sight looks like a straightforward case of domain-name piracy by a group of art pranksters is, in fact,far more complex. etoy and its supporters are saying that the company existed for three years before the conception ofeToys and had an online presence at etoy.com for two years before the arrival of Etoys.com. eToys registered itstrademark in the US first, though, etoy doing so only after hearing that a large company was setting up with a similarname.

A California Superior Court judge granted a preliminary injunction against etoy on 29 November and orderedthat etoy.com be closed down. One major factor in the decision was the claim by eToys' legal team that etoy was engagedin illegal stock-trading through its website. This is a claim denied by the artists. They acknowledge that they offer"etoy shares" for sale, but say these are merely pieces of art and in no way could be mistaken for real shares.

"Itis not illegal," claims Zai. "They speculate on the idea that the judge is sensitive to those topics. So if he hears thewords "investment security fraud", they can say that people buy these shares because they think it is [eToys] stock.They try to make us look like criminals."

If etoy is unable to gain the rights to resurrect its domain through theUS courts, then it may well bring a case in Europe. Etoys has recently set up an online branch in the UK that may becomethe focus of any future legal action, etoy claims.

For the outsider it is sometimes difficult to see what etoy's artconsists of. This is largely because the group itself is the product. It acts like a cross between a gang, a cult and acorporation and claims to work from cargo containers that can be moved across continents, allowing it to plug in and goat any location with a power supply. Its most famous work to date has been a "digital hijack" in which it claims to havehijacked more than a million Web surfers. By intensive investigation of the workings of search engines, it managed toplace its own Web pages high up in results for common search terms and then redirected users to a page that informedthem they had been hijacked. But the group does not fit the image of the subversive hacker that eToys is trying toproject; it has received awards at the Ars Electronica festival for electronic art. It has also had official backing inAustria, where the first holder of an etoy share was the chancellor, Victor Klima.

EToys did try to avoid adversepublicity by offering to buy etoy.com before the case came to court. But, even after an offer worth $500,000-plus, etoystill felt that the domain name was essential to the international nature of its work and could not be given up.

eToys, a relative newcomer to the Web, may have bitten off more than it can chew by choosing to pursue etoy. It may seema small, powerless group of artists but, despite its involvement in fairly harmless media stunts, it can call upon alarge community of activists who are willing to take on eToys on the Web. Several new domains such as toywar.com andeviltoy.com have already appeared, to spread the message and garner support for etoy.

Backing has also come fromRTMark - another group with a corporate façade, which has made a name by funding sabotage in the workplacefor political ends. It recently upset the Republican presidential candidate George Bush Jnr with its gwbush.com site,and the gatt. org site has drawn a broadside from the much-maligned World Trade Organisation. The site was a subversivemirror of the WTO's wto.org website and links led visitors to activists involved in the Seattle protests.

RTMark isnow turning its attention to eToys: "We're creating an etoy mutual fund that is very different from our other mutualfunds," says a spokesman. "Most of our projects don't target specific companies. But these will all have the purpose ofdestroying or punishing eToys as a company and making an example of it."

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