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We’re used to seeing tech companies sue each other over alleged IP infringements, but we now have what may be the first case of a gaming firm suing a confectionary maker. Atari has accused Nestle of violating its rights by using the name and concept of its 1976 game Breakout in a marketing campaign for Kit Kat chocolate wafers, which are made under license by a division of the Hershey Company in the US.
The UK advert in question (since removed from YouTube) shows a four people playing a game that looks very similar to the classic title, the main difference being that the bricks have been replaced with Kit Kat bars. And the fact the commercial is named “Kit Kat: Breakout” doesn’t bode well for Nestle, who said it would defend itself “strongly” against the allegations.
In the complaint filed in a San Francisco federal court, Atari said Nestle “exploited” the Breakout name through the ads and other references on social media, hoping to take advantage of "the special place it holds among nostalgic Baby Boomers, Generation X, and even today's Millennial and post-Millennial 'gamers.'"
Atari said the similarity between the ad and its game "is so plain and blatant that Nestle cannot claim to be an 'innocent' infringer".
A Nestle spokesperson said: "This is a UK TV advert that ran in 2016. The ad no longer runs and we have no current plans to re-run it. We are aware of the lawsuit in the US and will defend ourselves strongly against these allegations."
Breakout was developed as a successor to the iconic Pong, and was designed by Nolan Bushnell, Steve Bristow, and Apple co-founder Steve Wozniak, who is credited as the game’s creator alongside former Apple CEO Steve Jobs.
Atari is seeking three times Nestle's profit from the alleged infringement, as well as triple and punitive damages for copyright and trademark infringement and unfair competition.