A 2016 ad for Nestlé’s Kit Kat bars includes a video game that looks an awful lot like Breakout, the classic Atari video game co-created by Apple’s Steve Wozniak. Problem is, Atari says Nestlé didn’t get permission to make this Kit Kat-themed Breakout clone.
In a lawsuit [PDF] filed in San Francisco on Thursday, Atari claims that ads Nestlé aired in the United Kingdom constitute a “blatant invasion and misappropriation of its intellectual property rights” related to the game, which was released more than 40 years ago.
Give me a Breakout
In an ad called “Kit-Kat: Breakout”, people of all ages, sexes, and races come together to play a video game that involves moving paddles back and forth to bounce balls against bricks made out of Kit Kat bites. It’s all set against a beeping, hooping video game soundtrack.
“Share your break, with new Kit Kat bites,” the voiceover says. “Whoever you are, however you break— have a break, have a Kit Kat.”
Atari’s lawsuit also notes a Nestlé ad campaign on Twitter and Facebook that invited people to “Get your game on Breakout Breakers.”
Atari is displeased
In 1975, Atari was looking to follow up on its “groundbreaking” hit game, Pong, Atari’s lawsuit explains. “The new simple, addictive game was also a hit, and helped propel Atari to its long-held spot on top of the video game industry.”
The original game spawned multiple sequels, like Super Breakout and Breakout 2000, and has been ported to just about every gaming console at some point. There are many knockoffs of the game available, but Atari attempts to keep the Breakout brand alive with a version that’s free to play online:
“Forty years later Nestlé decided that it would, without Atari’s authorization, leverage Breakout and the special place it holds among nostalgic Baby Boomers, Generation X, and even today’s Millennial and post-Millennial ‘gamers’ in order to maximize the reach of worldwide, multi-platform advertisements for Nestlé Kit Kat bars,” the complaint alleges.
Just using the term “Breakout” in an advertising context “is the plainest invasion and infringement of Atari’s trademark rights,” the lawsuit claims.
This alleged infringement could eliminate Atari’s licensing opportunity “across a wide range of products and sectors,” the complaint alleges, because “any potential Atari licensee will have to consider both Atari’s past and continuing involuntary association with Nestlé when determining whether to license Breakout, or hundreds of other Atari games.”
Atari claims that Nestlé’s conduct was “willful,” and “obviously designed to leverage the decades of goodwill Atari and Breakout have garnered across multiple generations.”
The ads were “specifically designed to piggyback on the scope of the public’s familiarity with Atari and Breakout, given that millions of consumers, from the youngest gamers to aging Baby Boomers, have been exposed to the game,” the complaint alleges. “The infringement was not hidden, fleeting, or innocuous – Breakout is the central player, and binding thread, across all of the infringing ads.”
Nestlé responds
In a statement, Nestlé notes that the campaign was a UK TV advertisement that ran in 2016.
“The ad no longer runs and we have no current plans to re-run it,” the company said. “We are aware of the lawsuit in the U.S. and will defend ourselves strongly against these allegations.”
by Mary Beth Quirk via Consumerist
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