Redbubble defeats Atari’s trademark and copyright infringement claims

Steven T. Lowe

On November 4, 2021, a federal jury in the U.S. District Court for the Northern District of California, handed a loss to Atari concluding its lawsuit against Redbubble for selling merchandise with images allegedly stolen from Atari’s video games like Pong and Asteroids, finding Redbubble did not infringe upon any of Atari’s intellectual property.

The case began in 2018 after Atari advanced a number of trademark and copyright infringement claims against Redbubble alleging that it sold products with its proprietary logo and screen grabs from games including Pong, Asteroids, Centipede, and Breakout. Just after a day of deliberations, the jury found that Redbubble did not counterfeit the Atari trademark directly or vicariously, counterfeit the Pong trademark directly or vicariously, infringe trademarks for Atari or Pong, or infringe any copyright owned by Atari.

This isn’t the only suit Atari has filed against merchandise sellers. Atari filed similar infringement actions around the same time targeting merchandise sellers Zazzle, TeePublic, and SunFrog. Court records show that those three cases have since been either settled or voluntarily dismissed (which also usually indicates that an out-of-court settlement was reached). However, Atari’s claims against Redbubble made it all the way to trial with testimony from Atari’s licensing director, Casandra Brown, Ms. Brown told jurors that Redbubble sold hundreds of unlicensed products through its online marketplace that stole the game maker’s intellectual property, calling the infringement “out of control.”

James Toy, Redbubble’s in-house counsel, defended the print-on-demand online marketplace’s IP practices on the stand saying that it’s difficult, if not impossible, for Redbubble to know if an artist uploaded an original artwork or a design that infringes intellectual property rights. This occurred even after the company had manual reviews as well as an automated system to police for infringing images. Nevertheless, Toy said Atari never asked for any special efforts to remove potentially infringing products before filing the suit in 2018 other than one time in 2011.

U.S. District Judge Jon S. Tigar instructed the jury that if they find Redbubble liable for infringement, in order to calculate statutory damages, the jury may award between $1,000 and $200,000 “per mark, per type of good.” On the stand, Toy said that after Atari sued Redbubble in 2018, the online marketplace removed 2,915 listings that allegedly used Atari’s images within 24 hours, representing about $215,000 in potential product sales. However, he pointed out that more than 90% of those removed listings were later restored to Redbubble after a number of artists complained that their artwork and designs had no relation to Atari’s marks and copyrights. Nonetheless, following closing arguments, the jury reached a verdict for Redbubble, finding against Atari on all of its claims.

Atari is represented by Keith Joseph Wesley, Christopher W. Arledge, George Bernard Arthur Laiolo, Matthew Lawrence Venezia, and Milin Chun of Browne George Ross O’Brien Annaguey & Ellis LLP.

Redbubble is represented by Daralyn J. Durie, Joseph Charles Gratz, Allyson Roz Bennett, Matthaeus Martino-Weinhardt, and Moon Hee Lee of Durie Tangri LLP, Kenneth Brian Wilson of Coastside Legal, and Joshua Michael Masur of Zuber Lawler LLP.

The case is Atari Interactive Inc. v. Redbubble Inc., case number 4:18-cv-03451, in the U.S. District Court for the Northern District of California.

* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright and trademark law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.