Facts

Atari Interactive Inc., a pioneer in early gaming, is well-known for its distinctive trade name and "Fuji" logo design. Since its inception in the 1970s, it continues to market, promote, license and sell its products. To that end, through a registered trademark, Atari is the owner of the ATARI "Fuji" logo that can be used on, among others, printed materials such as posters, and stickers along with clothing. In a similar way, it owns the PONG name, the name of one of its first video games. Through contractual agreements with other entities, Atari owns various copyright registrations for its video games including the visual elements for Centipede, Asteroids, Breakout and Pong. Its claimed ownership rights include the common law rights to various trademarks, trade dress (the total image of the product) and visual elements in its own name, logo, the names and graphics of video games it owns and the overall look and feel of the Atari 2600 game console and joystick. Redbubble Inc. operates a website through which artists can sell their art on physical products. When Atari noticed that goods with Atari's name, logos, and other visual components that it owns were being sold on Redbubble's site, it filed suit.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that, through its website, defendant infringed on its intellectual property. According to plaintiff, customers can upload designs that Redbubble then displays on a variety of apparel (such as t-shirts, phone cases, stickers, etc.) that are pictured on the site. Redbubble then makes, ships, and processes the payment for the product. It splits the profit between itself and person who originally uploaded the design. Through this process, Redbubble is advertising, marketing, creating, displaying, offering for sale, selling, distributing, and profiting from counterfeit Atari products. These counterfeit products incorporate exact replicas of the registered ATARI and PONG trademarks. The website also sells a host of other products incorporating copyrights owned by Atari such as the visual elements of video games it owns. Specifically, Atari alleged trademark infringement and counterfeiting; copyright infringement; trademark dilution; false designation of origin; common law unfair competition; contributory trademark infringement and counterfeiting; contributory copyright infringement; vicarious trademark infringement and counterfeiting; and vicarious copyright infringement.

DEFENDANT'S CONTENTIONS: Defendant argued that it was merely a transactional intermediary. It controlled no essential terms of any of the transactions that occurred on its site. It also did not select details such as: the art offered for sale; the particular products (for example, t-shirts or mugs) on which the art may be printed; the title and tags for a product listing; nor the price of the product. All these details were controlled by the artist. Redbubble argued that it exists to allow artists to sell their art to a global audience. As such, its service fee is the same regardless of the price charged by the artist, which indicates that it is a service provider rather than a seller, since sellers usually adjust their price in relation to the value of the goods sold. Furthermore, Redbubble's user agreement repeatedly makes clear that Redbubble is not a seller and never holds title to the products sold on its marketplace. Also, there is no evidence that Redbubble and the independent companies printing the art on physical products (called "fulfillers"), have any authority to bind each other, which means that there is no apparent or actual partnership. Redbubble exercises no control--its software automatically passes the orders to the fulfiller (without anyone at Redbubble seeing the design), and once the order is sent, Redbubble has no other involvement: the fulfiller prints the design on the product, packages it and delivers it to the shipping company. No Redbubble employee ever has control of, or sees, the finished product.

Result

A jury found Redbubble was not liable for copyright or trademark infringement, nor trademark counterfeiting. Atari has another similar lawsuit against Teespring Inc. which is pending.