The domain name dispute is a melodrama with which any Internet industry observer is already quite familiar. The boilerplate script reads like this: Entity xyz123.com takes entity xyz1234.com to court for trademark and copyright infringement, dilution and expropriation of property delineated by that most precious of Internet resources, the alphabet. Somebody triumphs – typically the richer of the two parties – and the loser's encroaching digital property gets stashed away in the victor's dot-com trophy case.The actors in the latest e-melee have followed the story line. Yet the duo recalls no legal precedent so much as a biblical one. Call it the latest David-and-Goliath rematch. In the challenger's corner stands the cagey European collective of digital artists and satirists etoy – whose Web site at etoy.com had been a center of Internet-based subversive art until a California court silenced it last month. In the champion's corner, wearing the gold wrapping paper with the big red bow, is one of the largest retail sites on the Internet, eToys.com.
Of course, the contested alphanumeric character in this case would be "s," the figure that generalizes from single to plural, specific to universal.
"It's the first case of someone being told to stop doing what they're doing because someone else has decided to make money doing it," says Douglas Rushkoff, media critic and author of the books "Media Virus" and "Coercion." "In other words, it's the first case of the Internet equivalent of people being forced from their homes to make room for a highway."
The etoy-eToys squabble is emerging as perhaps the most important dot-com legal fight today. If Judge John B. Shook's Nov. 29 preliminary injunction against etoy is sustained, it will affect more than just a few digital art nerds and harried Pokemon buyers. According to the decision, which is now being appealed, the fact that etoy had been operating for two years before eToys opened its virtual door is immaterial. EToys claims an American trademark, while etoy's application is still being processed.
"This is a terrible situation that you can take away something from an earlier bona fide user and owner simply by putting a lot of money into a new domain name or a new trademark," notes Peter Wild, the Zurich-based lawyer for etoy. "This is not how it's supposed to be."
According to Ken Ross, corporate spokesman for eToys, the dispute is a simple one of artists trespassing on commercial domain.
"Our only interest in this matter is in making certain that there's no confusion in the marketplace," he says. "We found that there was. We found that our customers were not only confused but upset by what they found at the etoy site."
The artists' Web site – now only accessible by its numerical address (146.228.204.72:8080) – is about as different from the toy retailer as is a SoHo gallery from Toys "R" Us (TOY) . Yet etoy's roots run deeper than eToys may have expected.
Since eToys filed its complaint on Sept. 10, more than 20 Web sites have cropped up to lambaste eToys for its draconian tactics. Such pages as toywar.com, eviltoy.com and etoys-sucks.com tell the story of a celebrated arts collective – recipient of the grand prize at the 1996 Ars Electronica festival, considered the most prestigious electronic arts award in the world – that's now being bullied by a corporation that masks its vindictive actions behind a smiling Santa face. No similar groundswell has helped eToys trumpet its side of the story.
Perhaps most curious about the legal action to date, which etoy has begun to approach as an artistic "project" of its own, is that a trademark dispute, typically the province of the federal courts, is being heard in a state judicial system. Both Ross and eToys' lawyer Bruce Wessel declined to comment on why the company pursued the case in California superior court.
"In state court, the judge does not have any idea about federal trademark law," says Wild. "But he is more favorable to factual allegations which are in favor of family values. And of course eToys wants to stand for the nice American family and their plastic toys."
