Atari Forces Tumblr To Confront Trademark Issues

When Atari asked Tumblr for its domain, the company was quick to agree to hand it over. Maybe too quick.

Last week, Pete Nofelt, a developer at Foursquare, got an email from someone named Thomas at Tumblr. “Hello, Pete,” it began. “We have received the request from Atari below…”

Nofelt has been blogging at atari.tumblr.com for the better part of four years, and the email that Thomas forwarded was from a community coordinator at Atari, who wanted to create a Tumblr for the company. S/he wrote: “What can we do to claim this name as we are the official company?”

Tumblr wrote to Nofelt that because Atari has “held active registered trademarks that predate your blog by many years, and due to the prominence of the Atari name, we will give the web address to the trademark holder in one week.” No offer of compromise, no negotiation — just, we are taking away your subdomain. Sorry and goodnight.

Naturally, Nofelt was annoyed, and blogged about it, griping that Tumblr was quick to hand over his subdomain “as part of a mostly tepid request on Atari’s part,” and asked, “Is Tumblr’s way to financial freedom simply the process of servicing brands with a hurried social pitch over a community that hopes to build an archive?”

This isn’t the first time that Tumblr has been criticized for seizing active domains. In 2010, it took over a semi-active Tumblr at pitchfork.tumblr.com in a rather bumbling fashion when the music site Pitchfork requested it, prompting Gawker to note that “worse than the subdomain swap is how childishly Tumblr handled it.”

In an email to me, Nofelt wrote that he posted the story on his blog “mostly [as] a piece of catharsis and to comment on the change of online communities… as they grow.” He also consulted his lawyer, who told him he has no legal recourse based on Tumblr’s Terms of Service (which reads, in part, “We can suspend any individual account at any time. That sounds harsh, but we only use that power when we have a reason”).

And the reason he chose the Atari subdomain in the first place is pretty, well, sweet: “Atari was my first/only gaming console growing up. I valued it so much that at 31, I bring it with me wherever I move and keep it set up in my entertainment center (don’t worry, I actually have a life, can maintain a job and a long term relationship :) ). And like many people who have a couple big influences based on products (good or bad) I brought these products into my online persona, starting with my AtariPete AIM handle in 1996.”

But it seems like there might be a happy ending to this story. After I asked Tumblr for comment, I heard from Tumblr Vice President Andrew McLaughlin, who wrote, in part: “At first blush, we thought this was a straightforward trademark issue (i.e., a Tumblr using the mark of a globally famous trademark holder without any real justification), but, thanks to Pete’s gracious blog post, we now recognize it’s more complicated than that.” That means that the company is acknowledging that Pete wasn’t “acting in bad faith” when he first registered the domain, but it also means, per McLaughlin: “Nor do we think Atari should lose its right simply by waiting 4 years to claim its mark on Tumblr — after all, brands and users are getting introduced to Tumblr all the time.” Tumblr is now “holding off any action while we talk further with Pete and Atari to see what the best resolution might be.”

So, a respite, perhaps. But the incident raises a few issues that should trouble anyone who has a Tumblr subdomain of a brand that suddenly decides it wants to explore its social media options. Tumblr didn’t bother investigating whether it was a “straightforward trademark issue” or not until Nofelt blogged about it (and people like his boss, Foursquare founder Dennis Crowley, tweeted about it). Early adopters are going to continue to get punished under a system that privileges the rights of trademark holders over individuals.

ICANN has been dealing with this issue for years with regular domains, mostly with regards to domain squatters. The Uniform Domain Name Dispute Resolution Policy holds that “when a registrant chooses a domain name, the registrant must “represent and warrant”, among other things, that registering the name “will not infringe upon or otherwise violate the rights of any third party”, and agree to participate in an arbitration-like proceeding should any third party assert such a claim.” And it’s pretty much an open secret that if you know someone at Twitter, and you want to take over an inactive account (whether you’re a brand or not), you can probably get them to do it for you.

So maybe Tumblr should have preemptively reserved the domains of every trademark, ever, in the history of the world, but since they didn’t, they’re now sort of stuck when it comes to issues like this. Their options are to piss off these brands that could be one of the only ways they can seriously make money, or piss off the users who are the ones who made Tumblr cool and popular enough that the brands want to use it in the first place. Neither seems super appealing. What is becoming increasingly clear, though, is that when it comes to policing the internet, the little guy is probably going to lose out a whole lot more.

In fact, it seems like Tumblr hasn’t gotten around to letting Nofelt know that they’re reconsidering their stance. When I emailed Nofelt to ask what he thought of Tumblr’s about-face, he responded: “I really haven’t heard from Tumblr so you knew about this hold before I did… When I do hear from Tumblr/Atari, I’ll let you know.” Maybe they’re placating Atari first.

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