Atari Loses IP Suit Against Online Marketplace
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On November 4, 2021, a California federal jury found that
Redbubble did not infringe any of videogame maker Atari’s
trademarks or copyrights, in a case that may affect future
infringement suits against online retailers that permit users to
sell products on their platforms. The case dates to 2018 when Atari
filed its complaint alleging that Redbubble knowingly infringed
upon Atari’s intellectual property rights by creating,
manufacturing, and distributing counterfeit Atari clothing and
printed materials. Redbubble hosts an online store platform where
artists can upload designs that are printed on apparel, homeware,
or other accessories, and sold through the artist’s Redbubble
storefront. Atari’s complaint included claims of trademark
infringement and counterfeiting, copyright infringement, trademark
dilution, contributory copyright and trademark infringement, and
vicarious copyright and trademark infringement, due to the sale of
t-shirts, and other apparel and merchandise, that featured the
iconic Atari logo and designs that featured famous Atari games such
as Pong and Asteroids.
In January 2021, on motions for summary judgment, Atari failed
to convince the court that there were sufficient facts to prove
that Redbubble had “sold” goods that infringed
Atari’s trademarks, or that Redbubble had instigated any
copying, storage, or distribution of images that infringed
Atari’s copyrights. Further, Atari’s claims of contributory
and vicarious copyright infringement were denied because Redbubble
had, at least until the lawsuit was filed, no knowledge or notice
of infringing material on its platform, and once it was notified by
Atari through the complaint, removed all the identified listings.
At trial, the jury was tasked with determining whether Redbubble
had directly infringed Atari’s trademarks and copyrights, and
whether it was liable for vicarious and contributory trademark
infringement. After less than a day’s deliberation, the jury
found it had not.
In a blow for Atari, and possibly other mark owners who
experience trademark infringement on Redbubble, the jury found that
Redbubble did not, for the purpose of infringement, sell infringing
products, but rather it was the individual designers who were
selling the infringing items. Nor did the jury find that Redbubble
had sufficient knowledge or control of what third-parties are
selling on its platform for it to be liable for contributory or
vicarious trademark infringement. It remains to be seen if Atari
will appeal the verdict.
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