Nestlé in hot water with Atari over KitKat advert
Confectionery company Nestlé has landed in hot water with Atari, a pioneer in arcade games, over Nestlé’s “blatant invasion and misappropriation” of Atari’s IP rights to the game “Breakout”.
In a complaint filed yesterday at the US District Court for the Northern District of California, San Francisco Division, Atari accused Nestlé of using the game’s name and copyrightable elements in an advert for its KitKat chocolate bar.
“Breakout”, an arcade game where players use a paddle to hit bricks, was created in 1975 by Steve Jobs and Steve Wozniak (who would later go on to found Apple).
“Forty years later Nestlé decided that it would, without Atari’s authorisation, 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 maximise the reach of worldwide, multi-platform advertisements for Nestlé KitKat bars,” said the suit.
Nestlé allegedly took the classic “Breakout” screen, replaced its bricks with KitKat bars, and invited customers to “Breakout” and buy more chocolate bars.
“Adding insult to injury, Nestlé’s ‘Breakout’ campaign was comprehensive, and the infringement continues to this very moment,” the claim said.
The allegedly infringing advert is available here.
‘Breakout’ is registered at the US Patent and Trademark Office, under number 2,553,961 for computer game programs and video game cartridges.
Atari claimed that any potential licensee will have to consider Atari’s “past and continuing involuntary association” with Nestlé when determining whether to license “Breakout” or other Atari games.
It added: “Given the multi-billion dollar advertising markets for food alone, or even candy, confectioneries, or chocolate more narrowly, Atari’s licensing opportunities have been eliminated, or dramatically degraded, across a wide range of products and sectors.”
Atari claimed that the use of the term “Breakout” is the “plainest invasion and infringement” of its trademark rights, while the look, feel, sound, and operation of the game screen is the plainest invasion and infringement of Atari’s trade dress and copyright.
It added that Nestlé’s infringing conduct is so “plain and blatant” that Nestlé cannot claim to be an innocent infringer.
Atari is seeking permanent injunctive relief, triple damages, profits, costs, further relief, and a jury trial.
Did you enjoy reading this story? Sign up to our free daily newsletters and get stories like this sent straight to your inbox
Today’s top stories:
Expedia cleared of wrongdoing in Federal Circuit patent dispute
Latham & Watkins appoints FTC deputy director
Samsung reaches settlement over noise-cancelling patents
SCOTUS asked to consider whether ‘Google’ trademark is generic
