Etoy Update

Time for an etoy.com news roundup. The Etoy artists are still operating under a ridiculous injunction that bars them from operating a website at their domain. NSI caved to what they perceived as a court order and put the entire domain on hold, so email is blocked too. And Monday's meeting with the judge turned out to be merely a status conference which, according to Etoy's lawyer, "took all of 45 seconds." Nothing was decided, and the injunction remains in effect. But there's good news about the trademark. Click to read more.

The status conference was scheduled for 8:30 AM on the Monday after Christmas weekend, and Etoy's lawyer wasn't able to attend. Essentially it was the judge checking in with eToys' lawyers; the next meeting is scheduled for Jan.10, but that will probably also be just a status conference.

Here's the good news. According to Etoy's lawyer, one of eToys' major claims to trademarked ownership of "etoy" has been shot down.

eToys had purchased the trademark "ETOYS" from Etna Toys, a New York importer which had secured the mark for itself in 1990. In this way, the company which hadn't formed a website until 1997 could claim that it owned a trademark older than the art group which had been operating on the web since 1995.

Fortunately for Etoy, the Trademark Office decided that "ETOYS" was too generic to be trademarked, and invalidated it. According to this decision, prefixing "e" to the generic term "toys" is not enough to make it trademarkable. This decision may yet be overturned, but it's looking more promising by the day.

Meanwhile, Wired reports that John Perry Barlow and Douglas Rushkoff have joined the etoy crisis advisory board. Barlow calls this domain name dispute "the battle of Bull Run." He's got a point - NSI has taken a highly unusual action based solely on the bullying of a legal firm and a single clueless judge. If that matters more than the time-tested rules of the internet, we're all in trouble. Barlow says that Jon Postel, who worked so hard to establish those rules, would be in tears.

TBTF points out that eToys' stock has been plummeting since Dec.1 and asks why. Since that story, it has continued to fall. Some think this has something to do with their bullying Etoy; others disagree; there are some good comments in the Take It Offline forum that TBTF started.

Etoy's supporters' website at toywar.com promises "TOYWAR.com 1.0 will leave the etoy.BETA-LABS in a few days" but it's been saying that for weeks.

Finally, Etoy's friends at RTMark have taken it upon themselves to wage a game against eToys. The point is apparently to drive their stock price to zero. To me, this sounds about as fun as Quake over a 1200 baud modem, but maybe I'm just too bourgeois.

Comments

e-nothing.

[Signal 11]

How to Make it big in E-commerce:

• E-commerce DOES exist. It is not an IBM marketing phrase. Believe this. If in doubt, check out "datamation" or whatever magazine is sitting on your boss' desk right now.
• Patent everything.
• Aquire huge amounts of lawyers and money. Guns are frowned on - use them only internationally.
• Your trademark must consist of an easy to remember name - preferably one in the dictionary. Prefix the word with one of the following letters: "X, e, i". Example: eXtreme Computer Parts, iDunno, eNothing.
• Sue everyone with a related name. Network Solutions will happily shut down all of your competitor's online sites with a court order from /any/ jurisdiction. If the first one turns you down, go judge shopping.
• You IPO'd, right?
• Write a book about how you hit it big in the stock market. The title should try to be "deep" but mean nothing, ie: "Business at the speed of thought".

*cough* See, etoys is just following The Advice... don't blame them. =)

See etoy's site

[waldoj]

It's at http://146.228.204.72:8080/.

ETOYS BACKS DOWN!

[WilliamX]

http://www.wired.com/news/p olitics/0,1283,33330,00.html

Re:NSI is the problem here.

[lyonsj]

You know, that was my first thought. And then my fiance told me that NSI was just following their own policy, and I sort of had to agree. But then, I went back and read their Dispute Policy and it seems like they took an action that directly contradicts what they say in the policy. Here's a quote from section 9 of the policy:

(b) If the registrant's domain name creation date precedes the effective date of the valid and subsisting certified registration owned by the complainant, Network Solutions will take no action on the complainant's request.

So it does seem like your favorite registrant and mine, Network Solutions, didn't read their own policy.



Then again, from what I'm hearing, eToys.com bought the trademark from another company, so the trademark has actually been around longer than the etoy.com domain name. But, eToys.com didn't OWN that trademark until post-etoy. IANAL and this seems like really sticky territory... can any lawyers clarify what they think NSI should have done in this situation?

Capital wins, news at 11

[twit]

When domain names started having intrinsic value, rather than just being pointing to locations, then this kind of kerfuffle became inevitable. NSI, having little power of its own and no stomach (much less cash reserve) for a legal fight, will inevitably cave to the stronger party, and that's not what we need in a name service administrator.

If you'd like an analogue, imagine the US Patent and Trademark Office awarding ownership of any given patent or trademark to the strongest comer. Anyone can see how this would become disastrous.

The above analogue wouldn't happen, of course, because the Patent and Trademark Office is a government agency with the rest of the federal government behind it (note that this age may have changed, now that large corporations are lobbying to have funding slashed to agencies which prosecute them). You just don't fight city hall without a good reason and deep pockets. Fighting an independent NSI, on the other hand, is incredibly trivial.

I suggest that legal ownership of NSI's name service databases be recovered by the NSF or another agency of the US government (or better yet the UN), while the business of selling registrations and administering the databases remains in private hands. The point is that ICANN authorized name service vendors would become service providers rather than posessing goods (domain names) which are valuable in their own right and which they have next to no interest in protecting or ability to protect.

This isn't to say that the government would do a better job, or would be less of a jellyfish than NSI was. However, I'd lay good odds that it would at the very least appear much less powerless. This would be enough, I think, to discourage much petty banditry surrounding the issue of domain names.


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NSI is the problem here.

[jeroenb]

I don't really care about all the legal problems concerning trademarks and patents. It'll probably be a long time before we see the end of those, but I'm disappointed in NSI. I more or less expected them to be around long enough to understand that they should simply stand-by and wait for the judge to actually tell them to pull etoy from their database.

Because no matter what the actual result in this case is, companies might start getting ideas like "hmm I can always start some lame campaign against my competitor to have his domainname set on hold for a while." This could only be the beginning, and it's already bad :(