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A letter to Kilroy Realty Past projects / The etoy Fund / the campaigns / other campaigns / to the realtor
Date: Thu, 23 Dec 1999 11:23:56 -0700
From: Alan Herrell <>
Cc: RTMARK Admin <>,
    Robert Lane <>,
    "KNXV Ch. 15" <>,,
    Eric Brooks <>
Subject: Etoys Lease Agreement

Good Morning,

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

"LOS ANGELES, Dec. 22 /PRNewswire/ -- 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."

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

"On Nov. 29, a Los Angeles Superior Court judge issued a preliminary
injunction ordering the artists to stop using the domain name, 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

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

    In reverse domain name hijacking, the holder of a registered
rademark( 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

        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

on the alledged trademark infringement.

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


 In Note 4 of FORM 10-Q

                     OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarter ended SEPTEMBER 30, 1999           Commission File No.



    From time to time, the Company is subject to legal proceedings and
claims in
the ordinary course of business, including employment related claims and
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

Failing that, use the link below.

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

This is not a new development. these cases have been tried before with a
notable lack of success on the part of the plaintiffs,

Ford Motor Co. attacks

Hasbro attacks Clue Computing

of which in the above action your new partner is the plaintiff.

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:

City Pages, Dec. 1, 1999:

Village Voice, Dec. 1, 1999:

h2so4, Dec. 3, 1999:

Slashdot, Dec. 3, 1999:

Electronic Freedom for the Next Generation

Telepolis, Dec. 6, 1999:

Internet News, Dec. 6, 1999:,1087,81_254441,00.html

Why WebMasters should care...

New York Times, Dec. 9, 1999:

PR Web, Dec. 9, 1999:

Washington Post, Dec. 10, 1999:

Wired News, Dec. 11, 1999:,1283,32936,00.html

Sidney Morning Herald, Dec. 12, 1999:

PC World, Dec. 13, 1999:,1510,14341,00.html

Branchez-Vous, Dec. 13, 1999, in French:

London Independent, Dec. 13, 1999:

Tasty Bits from the Technology Front, Dec. 13, 1999:

Telepolis, Dec. 13, 1999 (in German):

"Morning Edition," NPR, Dec. 13, 1999, RealAudio:

Interactive Week, Dec. 14, 1999, top story:,4164,2408451,00.html

USA Today, Dec. 15, 1999:

APB News, Dec. 15, 1999:

Wired News, Dec. 15, 1999:,1283,33111,00.html

The Standard, Dec. 15, 1999:,1151,8225,00.html

ArtsWire, Dec. 15, 1999:

Associated Press, Dec. 15, 1999:

Der Standard, Dec. 15, 1999, English version:,1151,8205,00.html?nl=dnh

Slashdot, Dec. 16, 1999 (discussion):

Libération, Dec. 17, 1999 (in French):

Seattle Weekly, Dec. 17, 1999:

San Jose Mercury News, Dec. 17, 1999:

Wired News, Dec. 17, 1999:,1367,33159,00.html

CNN (TV), Dec. 17, 1999 (very poor transcripts):

"Morning Edition," NPR, Dec. 18, 1999, RealAudio:

New York Times, Dec. 18, 1999:

Financial Times, Dec. 18, 1999:

Telepolis, Dec. 18, 1999 (in German):

ZDTV, Dec. 19, 1999:,4603,2409365,00.

Arizona Daily Star, Dec. 20, 1999:

Wired News, Dec. 20, 1999:,1367,33184,00.html

Network World, Dec. 20, 1999:

CNN, Dec. 21, 1999:

Wired News, Dec. 21, 1999:,1367,33189,00.html

VilaWeb, Dec. 21, 1999 (in Catalan):

NYC, Museum of Modern Art, December 20, 1999

Sueddeutsche Zeitung, Dec. 22, 1999 (in German):

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.

Toy War Resistance Network

Toy War"

eToy exile site


Top: Society: Activism: Media Activism: Culture Jamming: etoy: Media
Coverage  (71)

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

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

Thank you for your time.

Alan Herrell
LemurZone Design
Phoenix, Arizona

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