Retro video game vs. modern advertising clip: Atari accused Nestlé of copyright infringement

This is a curious legal battle about a 40 years old video game and a modern advertising clip. Atari Inc., the former global player on video game market, is suing the world market leader of the food industry Nestlé for a copyright and trademark infringement. Atari sees his famous video game “Breakout” harmed by Nestlé’s advertising clip for KitKat from 2016.

It is an open secret that revelling in memories of their youth is having a positive impact on the strong consumption trends. Once more a famous food producer used this marketing key to promote its goods. An advertising clip from last year is the focus of a curious judicial proceeding: last week Atari accused Nestlé of copyright and trademark infringement at the US District Court for the Northern District of California.

Atari claims that Nestlé is using in an advert for its KitKat chocolate bar the game’s name and a storyboard and design close to the video game “Breakout”, known under the name “Little Brick Out” as well. Not only passionated gamers know this retro video game, that was developed in the 70th by Steve Jobs and Steve Wozniak. In this game rows of different-colored bricks finally have to be knocked down. The gamers control a paddle, which they use to direct a ball at rows of the bricks in order to brake them. The advertising clip of Nestlé for its KitKat chocolate bar, produced in 2016, is very similar to this game, indeed. For example the name of the advertising sequence is just “Kit Kat: Breakout”, and moreover the whole scenery is showing some gamers playing exactly a game like “Breakout”.

Copyright and trademark infringement of Atari’s video game “Breakout”

Is the similarity a homage to the video game? Atari says no and sues Nestlé over ‘Breakout’ KitKat ads. Nestlé and its UK and US subsidiaries were named as defendants in the suit filed on Thursday. In 2016 Nestlé sent the short promotional clip in the Great Britain market, that played with the idea, design and even the music of Ataris’s game. Instead of the bricks some KitKat chocolate pieces were set, and the scenery showed some gamers playing this “Kit Kat: Breakout” game. But Atari was not asked for authorisation nor for consent.

“Atari accused Nestle of copyright and trademark infringement and unfair competition”, reported press agency Reuters last week. “It is seeking three times Nestlé’s profit from the alleged infringement, plus triple and punitive damages.”

Trademark infringement is an economic factor

Atari Inc. has gone through some turbulent times: being a technical pioneer in the 70th Atari suffered from the collapse of the video game industry in the 80th. Nevertheless Atari, Inc. and Atari SA managed to establish themselves as global publisher since 2003. Ten years later Atari Inc. opened insolvency proceedings, but was able to end the insolvency proceedings of their own resources. On the other hand Nestlé has found itself in another copyright dispute. Just a few weeks ago the world market leader of the food industry Nestlé has been trying to obtain a trademark protection claim for its well-known KitKat bar for a long time. They believe that the “iconic” form of KitKat deserves to be protected as a trademark. But KitKat can still not register the form of its “four-finger-bar” as a 3D trademark, is the decision of the High Court of England and Wales (EWHC).

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