Atari sues art marketplace Pixels, claiming counterfeiting

Video games company Atari has filed a lawsuit against Pixels.com, alleging that the on-demand print shop has been infringing its trademarks.

The complaint says that Pixels.com and its fineartmerica.com website is allowing third-party sellers to upload designs for and list infringing products, mainly T shirts but also other types of clothing, phone cases and home décor.

Along with Atari's logo and pictures of its products such as the 2600 console and controllers, the company has encountered products bearing screenshot images from iconic games like Pong and Breakout, Asteroids and Missile Command.

"Pixels' stated mission is 'to connect artists and art buyers through technology and to provide artists with the tools they need to build successful businesses both online and offline'," says Atari in court documents filed with the district court for southern New York.

"What Pixels does not mention is that its platform results in it selling and facilitating the manufacturing of substantial quantities of counterfeit and infringing goods," it goes on.

An example of one of the products mentioned in the complaint can be seen below:

The lawsuit is interesting because Pixels.com and FineArtAmerica.com are actually printing the items themselves – or facilitating the process – so could be argued to be directly involved in the production of the items.

That's a slightly different scenario to Amazon or eBay, for example, which fulfil orders for goods made by other parties on its third-party marketplace.

So far, that has protected this type of online retailer from direct liability in counterfeiting cases under a piece of US law known as Section 230 with marketplaces arguing that this doesn't apply when the defendant is legally the seller of an item. That position is however still being challenged in the courts.

"Pixels has profited from its unauthorised use of Atari's intellectual property through the sale of the infringing goods and advertising and promotional uses of the Atari mark," says the complaint.

"Pixels' infringement has harmed Atari by cheapening and diluting the Atari brand, diverting profits from the sale of authentic Atari goods, and causing Atari to lose profits and licensing fees from the authorized use of its intellectual property."

The lawsuit is seeking an injunction on the use of its intellectual property, as well as statutory damages of no less than $150,000.00 for each registered copyright and no less than $2m for each registered trademark per type of good.

It's not the first time that Atari has acted against a print-on demand company. In 2018 it filed a suit against Sunfrog on similar grounds to its Pixels action. The following year, a US court ruled that the printer could not defend the claim using Section 230.