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December 9, 1999
By MATTHEW MIRAPAUL
EToys Lawsuit Is No Fun for Artist Group
legal battle between the online retailer eToys and a group of European conceptual artists known as etoy has resulted, at least temporarily, in the closing of the artists' pioneering Web site.
On Nov. 29, a Los Angeles Superior Court judge issued a preliminary injunction ordering the artists to stop using the domain name www.etoy.com. EToys.com, based in Santa Monica, Calif., had sued the artists in September, accusing them of trademark infringement, trademark dilution and unfair competition after hearing from customers who went to the art site by mistake, including some who complained about its profane language.
A legal battle between the retailer eToys (top) and a group called etoy has spawned protest sites like the Toywar Resistance Network (bottom). The artists, who mimic corporate behavior for artistic purposes, stopped using the domain name immediately, fearing fines of up to $10,000 a day if they defied the judge's order. (The site is still accessible via a numeric address.) The two sides are scheduled to meet again on Dec. 27, when it is possible they may reach a settlement.
While the etoy artists lost the first round in the legal arena, the court of public opinion is clearly on their side. Supporters who believe the artists are being muzzled have put up several sites urging visitors to boycott eToys and send disapproving e-mail messages to the firm's executives. A few parody sites have also appeared. Michael Samyn, a digital designer in Belgium, has created a work called Amerikan Justice as a commentary on the case.
Wolfgang Staehle, executive director of The Thing, an arts-oriented bulletin board, opened a site called Toywar to protest the legal action against etoy.
In a telephone interview from his New York office, Staehle said: "Artists should be free to do what they do. I'm outraged at how the dinosaurs are trying to stomp all over us." An etoy spokesman who gave his name as "zai" (the group's dozen or so members do not divulge their real names) expressed disappointment with the initial ruling. In a telephone conversation from Switzerland, where the group has been conferring with its lawyers, he said: "Etoy.com was our concept. It's not just another home page from a band.
"Etoy.com was the art piece," zai said, and giving up the domain name "will be the end of this art piece."
But eToys, which is the leading toy retailer on the Internet, says it is only being responsible by taking the dispute to court.
"The primary concern of any business is serving its customers, and we found that a number of ours were confused and were understandably upset by the etoy site," said Ken Ross, vice president of corporate communications for eToys. "We tried to resolve the matter amicably, and we remain open to doing so. But if that is not to be, we think that asking the court to render an opinion is the most responsible and common-sense approach we can take."
Since etoy was formed before eToys existed, no one could accuse the artists of being cybersquatters. This is not the first time that a toy-related company has clashed with an online artist. In 1997, Mattel Inc. asked the Internet service provider hosting "The Distorted Barbie" by the New York artist Mark Napier to remove the project from the Web, saying it violated Mattel's copyrights. It is now called The Distorted $arbie.
RTMark, another group of anonymous provocateurs, have successfully tweaked the campaigns of George Bush and Rudy Giuliani this year by launching parody sites with domain names that are confusingly similar to those of the campaigns' official sites. The group has been selected to exhibit in the Whitney Museum's biennial survey of American art next year.
Since etoy was formed before eToys existed, no one could accuse the artists of pulling a similar prank or of being cybersquatters -- people who register company and product names and then demand payment for them. But if a settlement cannot be reached, it will be up to the courts to decide if the dispute is an example of reverse domain-name hijacking, in which someone who covets a domain name but has no legal right to it tries to coerce the owner into surrendering it.
The seven original etoy members joined forces in October 1994. They registered the etoy.com domain in October 1995, and launched their site soon after, making it one of the pioneers in the Internet-art category. Among their first works was "Digital Hijack," which fooled search engines into sending visitors to their subversively minded site. The project earned the group the top prize in the Web category at the 1996 Ars Electronica Festival, considered the most prestigious competition in the electronic-art world.
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Etoy applied for a trademark on its name in the United States in 1997 but has yet to receive one. More recently, the group has been selling shares in its "corporation," in part to point out how intangible Internet-based art is. The group has been spending some of the proceeds on the $16,000 in legal fees it has racked up in its fight with eToys. But one of the terms of the preliminary injunction is that etoy is forbidden to sell its shares in the United States.
The case is certainly fulfilling etoy's goal of toying with the perception of corporations in cyberspace, albeit not in ways that the group might have intended. Some of etoy's more deliberate activities have included displaying material that seemed to promote terrorism, although visitors who were in tune with etoy's philosophy were not likely to take it seriously.
Asked how much the etoy site, which did not mention eToys, might hurt the company's business, Ross said: "It's very hard to really know that. We found that there was confusion, and we found that people were upset, and it's clear that one of the stated intents of the etoy site is to disrupt business. We believed that we had the responsibility to address the situation."
EToys was founded in 1996, and registered both its domain name and its trademark the following year. Given the timing involved, experts in Internet and intellectual-property law said that, despite the artists' initial setback, they may have a reasonably strong defense.
A. Michael Froomkin, a University of Miami law professor, said: "In the case of a regular old garden-variety trademark, it is pretty much an ironclad rule that, if you're using it legally before the trademark owner creates his business and trademarks his use, then all those uses you were making up to the time the trademark was filed, you may continue to make."
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In an e-mail message, Jessica Litman, a law professor at Wayne State University in Detroit, said: "Trademark law is predicated on the assumption that different businesses can use similar trademarks for different products. On the Internet, of course, there can be only one trademark.com. If the Internet weren't an issue, a U.S. toy merchant wouldn't have a cause of action against a European art firm because there would be little likelihood of confusion."
The courts may not have to make a decision in the dispute. Before filing suit, eToys officials indicated they were willing to buy out etoy, and the latest offer was somewhere over $400,000, in a mix of cash and eToys stock. If accepted, the price would probably set a record for a work of Internet art, although the work would likely vanish after the transaction.
The group has not agreed on a selling price, but zai said the most recent offer was insufficient. "We are not against selling," he said, "but at the moment we see how they treat us, like we're some kind of thing you can manipulate. We don't sell art under this pressure. You cannot force us to sell you this site just because you need it."
arts@large is published on Thursdays. Click here for a list of links to other columns in the series.
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Matt Mirapaul at mirapaul@nytimes.com welcomes your comments and suggestions.
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