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THE INDEPENDENT CONTENT PRODUCER REFUSES TO DIE!jz
buy your toys somewhere else
[Previous Opinion] 12/23/99

the Hasbro® open letter/opinion you are looking for is here
the Rushkoff Press Release is here

An Open Letter to Kilroy Realty

Good Morning,

Regarding your press release on your 11 year agreement with Etoys, Inc.

"LOS ANGELES, Dec. 22 -- Kilroy Realty Corporation (NYSE: KRC) today announced that it has signed an 11-year lease agreement with eToys (Nasdaq: ETYS), a leading internet-based retailer of children's products, for the entire four-story, 151,000-square-foot office building currently under construction at KRC's Westside Media Center in West Los Angeles. The agreement also includes an option for eToys to lease the Media Center's entire third phase of development, a similar 151,000-square-foot office building scheduled to begin construction in mid-2000."

Kilroy Realty Press Release
http://www.corporate-ir.net/ireye/ir_site.zhtml?ticker=krc &script=410&layout=-6&item_id=66397

You may want to re-examine this decision in light of the following information.

"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."

Source: New York Times Online
NOTE: Registration may be required
http://www.nytimes.com/library/tech/99/12/cyber/artsatlarge/09artsatlarge.html

This lawsuit is what is being referred to as 'Reverse Domain Hijacking'

In reverse domain name hijacking, the holder of a registered trademark( such as etoys,Inc., Clue, Barbie,) tries to take advantage of the fact that a small business or individual cannot afford to litigate the issue of an alleged infringement.

The holder of the trademark, after deciding it would like to use the domain name itself, notifies the registered owner of the domain name of its specious claim, and simultaneously demands that the hapless individual domain name holder give up the domain name, based upon an allegation of trademark infringement and dilution.

The allegation occurs, as in this case, totally without regard to the fact that, in a trademark infringement action involving two products of the same name, the registered trademark owner could not show infringement or confusion by the same mark in a totally different classification, and cannot prove dilution or diminution of the trademark by the mere existence and use of another product or service using the same mark.

Furthermore, a domain name is usually just an address, as in this case, and not a product or service. It is at most a service mark, which by definition does not infringe a product trademark which is unrelated to the service.

The demand and claim for infringement is made without regard to geographic location or the fact that the domain name is not in fact being used as a trademark, but merely as an address. In point of fact, the Patent and Trademark Office has only recently begun to register domain names, on the theory that, prior to that time, no domain name was considered to be used as a trademark.

This lawsuit underscores their lack of understanding of the Internet and the lack of concern on the part of the management of Etoys, Inc. for the rights of others.

Background Information

This suit was Originally filed 09/10/1999.

On December 27, 1999, In the Los Angelos Superior Court County Courthouse - Central District
in Dept #53 Room 513 at 08:30 AM
in the chambers of Judge JOHN P. SHOOK there will be a Further Status Conference.
Case # BC216606
ETOYS INC VS MARTIN KUBELI on the alleged trademark infringement.

The etoy.com domain was registered 2 years prior to the registration of etoys.com as the Network Solutions Whois Database shows.

Etoy Internic Record
http://www.networksolutions.com/cgi-bin/whois/whois?STRING=etoy.com&STRING2=search

Etoys Internic Record
http://www.networksolutions.com/cgi-bin/whois/whois?STRING=etoys.com&STRING2=search

Furthermore:

In Note 4 of FORM 10-Q

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended SEPTEMBER 30, 1999 Commission File No. 000-25709

NOTE 4--COMMITMENTS AND CONTINGENCIES

LEGAL PROCEEDINGS

"From time to time, the Company is subject to legal proceedings and claims in the ordinary course of business, including employment related claims and claims of alleged infringement of trademarks, copyrights and other intellectual property rights. The Company currently is not aware of any such legal proceedings or claims that it believes will have, individually or in the aggregate, a material adverse effect on its business, prospects, financial condition and operating results."

This report was filed on November 11/15/99, as part of the SEC Form: 10-Q , which is the quarterly report required of all publicly traded companies in the United States. You file them as well.

The link below will wrap, so you will need to cut and paste it in your browser.
http://www.freeedgar.com/Search/ViewFilings.asp?CIK=1052245 &Directory=912057&Year=99&SECIndex=5594 &Extension=.tst&PathFlag=0&TextFileSize=118872 &SFType=&SDFiled= &DateFiled=11/15/1999&SourcePage=FilingsResults&UseFrame= 1&OEMSource=&FormType=10-Q&CompanyName=ETOYS+INC

Failing that, use the link below.
FreeEdgar.com

The question is, did they forget?
Did they think that tossing a few lawyers around would let them do what they want?

This is not a new development.

These cases have been tried before with a notable lack of success on the part of the plaintiffs, of which in the above action your new partner is the plaintiff.

Ford Motor Co. attacks BlueOvalNews.com
http://www.blueovalnews.com/

Hasbro attacks Clue Computing
http://www.clue.com/legal/index.html

The Internet Community of which you are a member having a website, is protesting this action across the world.

Since the 29th of November of this year, the following articles have appeared condemning this lawsuit:

Salon, Nov. 30, 1999:
http://www.salonmagazine.com/tech/log/1999/11/30/etoys/index.html

City Pages, Dec. 1, 1999:
http://www.citypages.com/databank/20/991/article8260.asp

Village Voice, Dec. 1, 1999:
http://www.villagevoice.com/issues/9948/barliant.shtml

h2so4, Dec. 3, 1999:
http://socrates.berkeley.edu/~h2so4/etoy.html

Slashdot, Dec. 3, 1999:
http://slashdot.org/article.pl?sid=99/12/01/2156208&mode=thread

Electronic Freedom for the Next Generation, Dec. 5,1999
http://www.lemurzone.com/edit/converse13.htm

Telepolis, Dec. 6, 1999:
http://www.heise.de/tp/english/inhalt/te/5562/1.html

Internet News, Dec. 6, 1999:
http://www.internetnews.com/rumblings/article/0,1087,81_254441,00.html

Why WebMasters should care..., Dec 8, 1999
http://www.ericbrooks.com/etoys/

New York Times, Dec. 9, 1999:
http://www.nytimes.com/library/tech/99/12/cyber/artsatlarge/09artsatlarge.html

PR Web, Dec. 9, 1999:
http://www.prweb.com/releases/1999/prweb10839.htm

Washington Post, Dec. 10, 1999:
http://washingtonpost.com/wp-dyn/business/A39614-1999Dec9.html

Wired News, Dec. 11, 1999:
http://www.wired.com/news/politics/0,1283,32936,00.html

Sidney Morning Herald, Dec. 12, 1999:
http://www.smh.com.au/news/9912/13/bizcom/bizcom5.html

PC World, Dec. 13, 1999:
http://www.pcworld.com/pcwtoday/article/0,1510,14341,00.html

Branchez-Vous, Dec. 13, 1999, in French:
http://www.branchez-vous.com/actu/99-12/03-354304.html

London Independent, Dec. 13, 1999:
http://www.independent.co.uk/news/Digital/Features/toywars131299.shtml

Tasty Bits from the Technology Front, Dec. 13, 1999:
http://www.tbtf.com/blog/1999-12-05.html#5

Telepolis, Dec. 13, 1999 (in German):
http://www.heise.de/tp/deutsch/inhalt/te/5584/1.html

"Morning Edition," NPR, Dec. 13, 1999, RealAudio:
http://search.npr.org/cf/cmn/cmnpd01fm.cfm?PrgDate=12/13/1999&PrgID=3

Interactive Week, Dec. 14, 1999, top story:
http://www.zdnet.com/intweek/stories/news/0,4164,2408451,00.html

USA Today, Dec. 15, 1999:
http://www.usatoday.com/usatonline/19991215/1754367s.htm

APB News, Dec. 15, 1999:
http://www.apbnews.com/newscenter/internetcrime/1999/12/15/etoys1215_01.html

Wired News, Dec. 15, 1999:
http://www.wired.com/news/politics/0,1283,33111,00.html

The Standard, Dec. 15, 1999:
http://www.thestandard.com/article/display/0,1151,8225,00.html

ArtsWire, Dec. 15, 1999:
http://www.artscope.net/NEWS/news121499-5.html

Associated Press, Dec. 15, 1999:
http://www.washingtonpost.com/wp-srv/aponline/19991215/aponline182300_000.htm

Der Standard, Dec. 15, 1999, English version:
http://www.thestandard.com/article/display/0,1151,8205,00.html?nl=dnh

Slashdot, Dec. 16, 1999 (discussion):
http://slashdot.org/articles/99/12/16/0748207.shtml

Libération, Dec. 17, 1999 (in French):
http://www.liberation.fr/multi/actu/semaine991213/spec991217f.html

Seattle Weekly, Dec. 17, 1999:
http://www.seattleweekly.com/features/9949/kiss-gunn.shtml

San Jose Mercury News, Dec. 17, 1999:
http://www7.mercurycenter.com/premium/business/docs/gillmor17.htm

Wired News, Dec. 17, 1999:
http://www.wired.com/news/business/0,1367,33159,00.html

CNN (TV), Dec. 17, 1999 (very poor transcripts):
http://www.tveyes.com/database/expands.asp?ln=526785&key=etoys

CNN (TV), Dec. 17, 1999 (very poor transcripts):
http://www.rtmark.com/more/articles/etoycnntranscriptb19991217.html

"Morning Edition," NPR, Dec. 18, 1999, RealAudio:
http://www.npr.org/ramfiles/wesat/19991218.wesat.12.ram

New York Times, Dec. 18, 1999:
http://www.nytimes.com/library/tech/99/12/cyber/articles/18etoy.html

Financial Times, Dec. 18, 1999:
http://www.ft.com/hippocampus/q30842e.htm

Telepolis, Dec. 18, 1999 (in German):
http://www.heise.de/tp/deutsch/inhalt/te/5606/1.html

ZDTV, Dec. 19, 1999:
http://www.zdnet.com/zdtv/internettonight/netculture/jump/0,4603,2409365,00.html

Arizona Daily Star, Dec. 20, 1999:
http://dispatches.azstarnet.com/joe/1999/1220-945709341.htm

Wired News, Dec. 20, 1999:
http://www.wired.com/news/business/0,1367,33184,00.html

Network World, Dec. 20, 1999:
http://www.nwfusion.com/news/1999/1220etoys.html

CNN, Dec. 21, 1999:
http://www.cnn.com/1999/TECH/computing/12/21/etoys.attack.idg/index.html

Wired News, Dec. 21, 1999:
http://www.wired.com/news/business/0,1367,33189,00.html

VilaWeb, Dec. 21, 1999 (in Catalan):
http://vilaweb.com/informatica/

ETOY: THE NAME IS NOT FOR SALE
DOUGLAS RUSHKOFF AT ETOY PRESS CONFERENCE NYC,
Museum of Modern Art, December 20, 1999

http://www.lemurzone.com/edit/converse14.htm

Sueddeutsche Zeitung, Dec. 22, 1999 (in German):
http://www.rtmark.com/more/articles/etoysueddeutsche19991222.html

I haven't included todays information but I would not be surprised that it will show up.

The Internet community is so outraged that the following sites have been created to protest this latest assault on the freedom of the internet.

etoys-sucks.com
http://www.etoys-sucks.com

Eviltoy.com
http://www.eviltoy.com/

Toy War Resistance Network
http://members.tripod.com/trnetwork/

Toy War
http://www.toywar.com/

eToy exile site
http://146.228.204.72:8080/

RTMark
http://www.rtmark.com/etoy

Top: Society: Activism: Media Activism: Culture Jamming: etoy: Media Coverage (71)
http://dmoz.org/Society/Activism/Media_Activism/Culture_Jamming/etoy/Media_C overage/

Lets take a quick look at the historic and current shareholder value of Etoys, Inc.

Friday, November 26, 1999 Closing Price: 66 5/8
 
On Saturday November 29, 1999, Salon Magazine published the first piece on this situation.
 
Monday, November 29, 1999 Closing Price: 67 1/16
Friday, December 03, 1999 Closing Price: 53 13/16
Friday, December 10, 1999 Closing Price: 45 1/8
Friday, December 17, 1999 Closing Price: 37 9/16
Today at 12:26pm ET 31 1/4 (as of this writing the value is still going down)
In less than 30 Days Etoys has lost over 50% of its value.

Congratulations on your contract. I hope you got the money up front.

I will be posting this letter in it's entirety on my website. I will send you a link to it and would be happy to post any response you may have.

Thank you for your time.

Alan Herrell
LemurZone Design
http://www.lemurzone.com
Phoenix, Arizona
1-602-995-2602

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