I understand the frustration of etoy with being confronted with the prospect of etoys being silly. However, the court is actually acting in a rational manner. The injunction is preliminary, meaning that it will not last longer than about 15 days (I don't have my copy of the Federal Rules in front of me) and then a hearing will be held to determine if the requsite circumstances exist to warrant a continuation of the injunction. I don't think the injunction will be continued (which would also remove the $10K fine). Equitable remedies are sometimes more difficult to maintain than legal remedies, and injunctions are no exception. As for the fine, such a fine is in place not because etoy is doing something bad. The fine is there to enforce a court order. The US courts can't really go around jailing europeans for contempt of court. So the court does the only thing it can in a civil contempt situation. There is some question as to how such a fine would be enforced as the artists are not americans, but this fine is not in place to punish etoy.
Finally, the interesting thing about this entire suit is that it would not exist at all except the US ratified the Bern Convention to bring the US in compliance with the European Trademark laws! The source of the dilution statute (which is the *only* basis for etoys argument as etoy was a prior user and thus has rights to use the mark under traditional US trademark law) is european law! Not US law! Unusually, I don't think this is a situation of american lawyers messing with the system. US trademark law would have given prior user rights to etoy and the entire problem would not have come up!
Slashdot Mirror
I understand the frustration of etoy with being confronted with the prospect of etoys being silly. However, the court is actually acting in a rational manner. The injunction is preliminary, meaning that it will not last longer than about 15 days (I don't have my copy of the Federal Rules in front of me) and then a hearing will be held to determine if the requsite circumstances exist to warrant a continuation of the injunction. I don't think the injunction will be continued (which would also remove the $10K fine). Equitable remedies are sometimes more difficult to maintain than legal remedies, and injunctions are no exception. As for the fine, such a fine is in place not because etoy is doing something bad. The fine is there to enforce a court order. The US courts can't really go around jailing europeans for contempt of court. So the court does the only thing it can in a civil contempt situation. There is some question as to how such a fine would be enforced as the artists are not americans, but this fine is not in place to punish etoy.
Finally, the interesting thing about this entire suit is that it would not exist at all except the US ratified the Bern Convention to bring the US in compliance with the European Trademark laws! The source of the dilution statute (which is the *only* basis for etoys argument as etoy was a prior user and thus has rights to use the mark under traditional US trademark law) is european law! Not US law! Unusually, I don't think this is a situation of american lawyers messing with the system. US trademark law would have given prior user rights to etoy and the entire problem would not have come up!