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By John McCarthy, Opinion Editor

August 18, 2017 | 4 min read

The chocolate and confectionary industry is no stranger to lawsuits. More often than not, companies are locked in legal battles to secure their intellectual property against rival incursions. Mixing things up however, Nestle’s Kit-Kat has been collared by a relic of gaming’s past, Atari.

The Atari was one of the first leading home consoles with titles like Pong, Asteroids, Space Invaders and Pac-Man in the 70s through 80s. The company’s fortunes are more modest today, it lives on as a games publisher, where it largely presides over the distribution of its extensive retro back-catalogue and the merchandising of said IPs.

Breakout, a brick-blasting evolution of Pong, that coincidentally was designed by Apple founders, Steve Wozniak and Steve Jobs, features heavily in a UK ad from Kit-Kat with the bricks changed into blocks of chocolate.

The ad, that was called Breakout after the game, and also having fun with Kit-Kat’s ‘Take a Break’ strapline, looks to make a straight up reference to the title, rather than remixing it enough to distance itself from the claims.

On the spot that was produced by 2AM Films and directed by James Caddick, Atari said: “Nestle simply took the classic 'Breakout' screen, replaced its bricks with KitKat bars, and invited customers to 'breakout' and buy more candy bars.

"The infringing conduct in this case is so plain and blatant that Nestle cannot claim to be an 'innocent' infringer. Nestle knew exactly what it was doing."

It added that the game holds a special place in the minds of “nostalgic Baby Boomers, Generation X, and even today's Millennial and post-Millennial 'gamers'”.

Lee Curtis, chartered trade mark attorney at law firm HGF, told The Drum: “Many advertising campaigns attempt to incorporate nostalgic themes and images to create a connection with consumers, and many of these themes centre on a consumer's childhood. Problems arise, however, because some of those nostalgic images have intellectual property rights associated with them, even though they may not have been used for many years, even decades, and someone out there still owns those rights.

“The strength of Atari’s claim, I suspect, will very much turn on what rights, if any, they still have in the Breakout game imagery, whether that be via copyright in the images of the game, or residual goodwill in the name and look of the game.

“Nestle may have problems because they will find it difficult to argue that they did not use the imagery and concept to create a nostalgic connection in the minds of consumers with the Breakout game and eating their chocolate. Atari will possibly rightly argue, as they arguably own the rights in such imaginary, Nestle have in some way traded off that nostalgic value. Nestle used the imagery for a reason, so it has value, and Atari own that value," Curtis continued.

“It is also interesting to note that the case was launched in California over an apparent UK advert, which might be an issue in this case.”

The copyright suit was filed to California Northern District Court in San Francisco Office on Thursday 17 August. Atari seeks damages for the use of its game in the ad. Nestle is still to comment on the case.

Nestle Advertising Kitkat

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