back to article Atari shoots sueball at KitKat maker over use of 'Breakout' in ad

Atari has sued Nestle, accusing it of "blatantly" impinging on its intellectual property by featuring the 1970s video game Breakout in a Kit Kat ad without its permission. In a lawsuit filed yesterday in San Francisco, California, the games biz accused Nestle of "blatant invasion and misappropriation of its intellectual …

  1. frank ly Silver badge

    @Sub-vulture re. "Breakout"

    It's a name, hence the initial capital letter.

    1. JudeKay (Written by Reg staff)

      Re: @Sub-vulture re. "Breakout"

      I wasn't taking issue with the capitalisation - that just makes it a proper noun rather than a common noun: ie, it remains very much *not* a verb/verbal phrase.

      1. Anonymous Coward
        Anonymous Coward

        Re: @Sub-vulture re. "Breakout"

        Hi, JudeKay, could you ask diodesign to comment on this query, raised by an A/C during an absorbing discussion on Nazis:

        Is it dio-design or diode-sign or even di-ode-sign? Just wondered, whilst you're here.

        Many thanks.

        1. malle-herbert Silver badge
          Angel

          Re: @AC re. "diodesign"...

          I think it's this :

          -►|-

        2. Anonymous Coward
          Anonymous Coward

          Re: @Sub-vulture re. "Breakout"

          Clearly and using my own patented logic, diodesign is a metaphor for a Boolean logic gate, in other words your comment gets a yes or a no as to whether you are offensive, stupid or just plain illogical, pass the gate and your comment stays. As for how it is pronounced I'm guessing it's diode-sign based on my logic.

          P.S. Yes I could be clever and have left this comment as it is hoping to goad an answer but that would be disrespectful.

          P.P.S. By adding the P.S. I have now invoked another clever attempt at getting a response.

          P.P.P.S. I give up. It's diode-sign, end of.

          1. dbtx Bronze badge

            Re: @Sub-vulture re. "Breakout"

            It could be a jab at the GPL which serves as a conceptual diode for code-- easily added under the umbrella but not easily relicensed for truly free outside re-use... Or a diode-sign is used to distinguish between diodes and antidiodes, which are reverse biased by electrons and by holes respectively. IMO everyone should use unsigned diodes because they Just WorkTM. [looks at calendar] oh well, whatever.

        3. mrjohn

          Re: @Sub-vulture re. "Breakout"

          I think you need the Holy Diver to answer that

  2. Anonymous Coward
    Anonymous Coward

    They should sue the ad agency into oblivion. One less nest of scum.

  3. Anonymous South African Coward Silver badge

    go to world of spectrum & search for "breakout" in the archives

    one such game can be found on the horizons tape included with each speccy

    & to the best of my recollection nothing has come from that and neither from world+dog producing breakout and breakout clones in all incarnations.

    atari will lose this case.

    1. Swarthy Silver badge
      Pirate

      I dunno....

      The use of "Breakout" as a verb, along with the use of the original(?) sounds/music puts it in a completely different arena than the clones written by others that used their own music/imagery/branding.

      This is obviously a play on the "Breakout" branding, as opposed to "Bricks", "Block Breaker", "Block Destruction", or "Brickbat". All Atari has anymore is their marketingIP Department, so this is indeed an existential threat. The clones are just ripping off (err, inspired by) the game, which Atari doesn't sell, so there's no loss there.

      1. Charles 9 Silver badge

        Re: I dunno....

        Did (I think) IBM get permission to use Pong in its commercial some time back?

  4. samzeman
    Flame

    I hope Nestle loses everything somehow

    God I dislike Nestle. I know a lot of other companies are equally as bad but they were my gateway as a teen into the world of companies-can't-be-trusted. I wish I never had to buy any of the products under their terrifying unseen monopoly umbrella.

    1. Anonymous Coward
      Anonymous Coward

      Re: I hope Nestle loses everything somehow

      Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus.

      1. PerlyKing
        Thumb Down

        Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

        I disagree.

        tl;dr is that Nestlé are at best indirectly responsible for the deaths of babies in developing countries around the world due to their "aggressive marketing" of breast milk substitutes over the last 40 years or so.

        See https://en.wikipedia.org/wiki/Nestl%C3%A9_boycott for details.

        1. This post has been deleted by its author

          1. samzeman

            Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

            Take the initiative and check the citations then. There are many, many websites that talk about the Nestle situation.

          2. PerlyKing
            FAIL

            Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

            "you have just destroyed all credibility for your argument" - said the AC who provided no evidence at all for his/her/its own assertions.

            Wikipedia is not the most reliable source, but in this case it provides links to many other sources. I suggest that you read some of them.

            1. Adam 52 Silver badge

              Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

              "links to many other sources. I suggest that you read some of them"

              There's absolutely no evidence in the links from the Wikipedia page that supports this allegation:

              "are at best indirectly responsible for the deaths of babies in developing countries"

              The Wikipedia page seems to be relying on proof by repeated assertion.

              A better reference would be Fewtrell et al. Six months of exclusive breast feeding: how good is the evidence? BMJ 2011; 342 :c5955

              1. Richard 12 Silver badge

                Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

                Breast milk is not made from undrinkable water filled with parasites and cholera.

                Consider how someone without access to drinkable tap water makes up baby milk powder.

              2. curious orange

                Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

                This is worth viewing with regards to Nestle

                https://m.youtube.com/watch?v=lBTj9cy3Uug

              3. TheVogon Silver badge

                Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

                ""are at best indirectly responsible for the deaths of babies in developing countries""

                Exactly. At best...

        2. Anonymous Coward
          Anonymous Coward

          Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

          tl;dr is that Nestlé are at best indirectly responsible for the deaths of babies in developing countries around the world due to their "aggressive marketing" of breast milk substitutes over the last 40 years or so.

          Well, no, that wasn't actually the case. You're repeating what the outragists made of it, but the intentions were the opposite of evil. Nestlé sold milk powder but it forgot that the key ingredient they had no control over was the water used to prepare the formula. In Western countries, you can sometimes trust what comes out of the tap, but in other countries you better cook the living daylights out of the water you plan to use because it's not very good for people otherwise.

          Anyone who has ever travelled and forgot to check where the ice cubes in their drinks came from will remember the unpleasant but educative days that followed.

          Ergo, they replaced the stuff that reached babies through a human sized filter system (the mother) with something that contained all the misery that can hide in uncooked water. You can argue that the packaging should have told the user that Nestlé didn't magically sterilise the water, but it wasn't the powder that was the problem.

          Nestlé's mistake was not being quick enough to react and figure this out, but it was not actually their fault other than assume people had the brains to work this out for themselves.

          I'm seriously not a fan of Nestlé (especially because of what they're doing to water reservoirs worldwide) but this happens to be the one disaster that wasn't quite of their making.

          1. d3vy

            Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

            Anon, you say the problem was that nestle didn't react quickly enough... It's been 40 years and they're still doing it... They are reacting at glacial speed.

          2. Richard 12 Silver badge

            @AC

            Nestlé were claiming that their baby milk was better and safer than breast milk, despite knowing that almost nobody in that market had access to water clean enough to use it safely.

            They even dressed up their salespeople in fake nurse uniforms for a while.

            This wasn't ignorance. They knew it would result in thousands of deaths and they just didn't care - their bottom line was more important. Their response to the initial outcry was - and even in 2013 remained - "Someone else should improve the water supply".

            Over in the USA and EU, they'd lost a lot of sales to "breast is best", and were desperate to increase sales at any cost.

            It's similar to what Martin Shkreli did more recently, except on a grander scale.

            1. Anonymous Coward
              Anonymous Coward

              Re: @AC

              "Nestlé were claiming that their baby milk was better and safer than breast milk, despite knowing that almost nobody in that market had access to water clean enough to use it safely."

              Counterpoint: The mothers ALSO needed similar access if they were going to have any chance of breastfeeding their babies (since what they drink tends to pass on in the breast milk). Dead either way.

              "They even dressed up their salespeople in fake nurse uniforms for a while."

              Can you prove that claim?

              1. Anonymous Coward
                Anonymous Coward

                Re: @AC

                >>"They even dressed up their salespeople in fake nurse uniforms for a while."

                >Can you prove that claim?

                try here

              2. d3vy

                Re: @AC

                "Counterpoint: The mothers ALSO needed similar access if they were going to have any chance of breastfeeding their babies (since what they drink tends to pass on in the breast milk). Dead either way."

                >> Actually no, the mothers tend to have much more developed immune systems and their bodies naturally filter out most of the bad stuff.

                "They even dressed up their salespeople in fake nurse uniforms for a while."

                "Can you prove that claim?"

                >> Yes, https://www.theguardian.com/sustainable-business/nestle-baby-milk-scandal-food-industry-standards

                Third paragraph.

                You're welcome.

                1. Charles 9 Silver badge

                  Re: @AC

                  "Actually no, the mothers tend to have much more developed immune systems and their bodies naturally filter out most of the bad stuff."

                  Not if they're undernourished, which mothers will tend to be when having babies in impoverished areas where even clean water isn't a given. Compromised bodies result in compromised immune systems.

                  1. d3vy

                    Re: @AC

                    I know its been several weeks now and this might never be seen but :

                    "Not if they're undernourished, which mothers will tend to be when having babies in impoverished areas where even clean water isn't a given. Compromised bodies result in compromised immune systems."

                    Even under nourished the mothers immune system is more developed than that of the infant.

          3. curious orange

            Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

            Just to add that even if people in Mozambique wanted to read how to use the product they may have had a problem. Why? Well, of the 33 official languages of Mozambique, English isn't one of them. And what language were the instructions in? That's right - English.

        3. Martin Summers Silver badge

          Re: Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus

          "I disagree.

          tl;dr is that Nestlé are at best indirectly responsible for the deaths of babies in developing countries around the world"

          Wow, and I was going to comment about how they've screwed over the KitKat with the new recipe. Glad I didn't now.

      2. Destroy All Monsters Silver badge

        Re: I hope Nestle loses everything somehow

        Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus.

        You now picture Jesus with Sponsored Ads on the cross.

        1. Swarthy Silver badge

          Re: I hope Nestle loses everything somehow

          Next to Microsoft and Oracle, Nestle are now practically emissaries of Jesus.
          Other way around I'm afraid. Nestlé is on par with Monsanto in the evil corporation stakes. MS and Oracle are school-yard bullies stealing lunch money, compared to Nestlé as Pablo Escobar.

          1. This post has been deleted by its author

          2. thegroucho
            FAIL

            Re: I hope Nestle loses everything somehow

            You forgot SCO!

            Also Martin Shkreli.

  5. Chazmon
    Joke

    Personally I think this case will bounce off doing minimal damage in the first instance but will return even faster.

    1. Anonymous Coward
      Anonymous Coward

      Maybe the lawyers will go over the top in this one as it's the best strategy.

  6. DagD

    breakout fitting

    Nestle's chocolate does taste like bricks.

    fitting.

    1. Nimby
      Angel

      Re: breakout fitting

      And Nestle's product does promote a Breakout of pimples.

    2. TheVogon Silver badge

      Re: breakout fitting

      "Nestle's chocolate does taste like bricks."

      Still way better than that putrid American Hersheys chocolate that smells of vomit.... Cadburys ftw in milk chocolate....

  7. marcxm

    Insane. Come on ...

  8. Andy Taylor

    Google Image Search?

    "atari breakout"

  9. TRT Silver badge

    I think the real question here is, have Atari defended potential infringements of their "Breakout" IP before? Was Arkanoid licensed, for example? If they've failed to previously enforce or defend copyright on the style of the game, then they might as well Have a Break themselves. And hope Nestle never used the phrase "breakout" during the 60 year (since 1957) that the "Have a break" slogan has been around (although they stopped using that slogan around the early-mid 2000s, I seem to recall).

    1. Pascal Monett Silver badge

      Arkanoid was legally made

      You cannot prevent people from being inspired by a concept, only from making a blatant copy of your product.

      AFAIK Arkanoid was a perfectly legal brick-breaker. If Arkanoid was not, then you have 90% of Steam's catalogue of JRPGs, RTSs and recreations of 1970s games that need to be removed, stat.

      1. TRT Silver badge

        Re: Arkanoid was legally made

        Well, on a legal point, you'd have to consult the adjudication surrounding Tetris. There is a legal maxim that you cannot copyright the mechanism of a game, only things like graphics, music etc. but it was found that a Tetris clone, minimax or something like that, was so similar to the original in look, feel, operation and concept that it did in fact impinge on copyright. I picked Arkanoid as an example of a similar game that was produced by a rival company and asked the question "At that time, did Atari seek remedy over the similarity of that game to Breakout?" If they did NOT, and failed to do so with many of the other clone games then the US court system would deem it to be an undefended intellectual property, and simply throw the case out of court. I suspect that Arkanoid was not licensed and if the copyright was challenged, then I suspect Atari lost the case on the grounds you mentioned. In any event it puts Atari on a very shaky footing.

        1. Graham Dawson

          Re: Arkanoid was legally made

          Only for trademarks. Copyrights don't need active defence to remain protected.

          1. Charles 9 Silver badge

            Re: Arkanoid was legally made

            Furthermore, Arkanoid's introduction of different bricks, powerups, and transforming paddle could be considered novel enough to be declared a derivative work and eligible for its own copyright.

            1. Richard 12 Silver badge

              Re: Arkanoid was legally made

              Arkanoid is a much better game.

              Felt more balanced.

  10. blcollier

    The shuffling corpse of Atari shambles onwards...

    ...infested and driven by a parasite that bears little resemblance to the Atari Of Old we fondly remember.

    1. Dan 55 Silver badge

      Re: The shuffling corpse of Atari shambles onwards...

      That'd be Infrogrames, the current owner.

      Both companies have survived nearly two decades by flogging off the family silver and lawyers.

    2. Michael Strorm

      Re: The shuffling corpse of Atari shambles onwards...

      Let's take off the rose-tinted spectacles here- the "Atari of Old" (i.e. the original Atari Inc. (#)) may have produced some great games, but they were still as much a bunch of sue-happy dicks that treated their game programmers as little more than "towel designers", then- when a bunch of them left to form Activision- tried suing them to prevent the release of independently-produced games for the VCS console.

      The "never mind the quality, feel the IP/marketing" attitude also gave us the rushed ET game and the equally infamous Pac-Man being forced into a 4K rather than 8K ROM (against programmer Tod Frye's wishes). We all know how those ended.

      (#) Rather than today's Atari, which is effectively just the company formerly known as Infogrames after they bought the name and IP from Hasbro.

      1. adam payne Silver badge

        Re: The shuffling corpse of Atari shambles onwards...

        Then the people who formed Activision became just like their old masters and now flog mediocre games after slapping Call of Duty name on the front of the box.

        1. Charles 9 Silver badge

          Re: The shuffling corpse of Atari shambles onwards...

          As I recall, Activision suffered the same fate as Atari in their descent into mediocrity. The Activision of today is also much different: it's now one half of Activision Blizzard. And until recently, the whole shebang was a subsidiary of Vivendi (but give them credit: they took themselves independent with a successful buyback).

  11. Hans Neeson-Bumpsadese Silver badge

    Nestlé's legal department....

    ...must be bricking it

    1. Anonymous Coward
      Anonymous Coward

      Re: Nestlé's legal department....

      Atari are Ark-annoyed and seeking revenge (of doh).

      1. Jedit

        Re: Nestlé's legal department....

        I was torn between upvoting this for the pun and downvoting because I'd wanted to post it myself.

        Personally, I think both parties are Batty.

        1. Anonymous Coward
          Anonymous Coward

          Re: Nestlé's legal department....

          Bravo sir, for the Batty reference. *makes the Italian chef kiss of finger and thumb pinched together kind of thing*.

  12. This post has been deleted by its author

  13. Hans 1 Silver badge
    Childcatcher

    Atari*, don't let go of Nestle scum, please, fight them as much as possible.

    * Atari rights holders

    PS: Nestle is evil.

  14. Nimby
    Unhappy

    Actually, now I miss my TI-85.

    Darn. I miss my TI-85. I wrote (and played) Pong and Breakout clones on it instead of doing actual school work during high school. Between that and putting all of my math and science notes into programs as comments, it made school almost bearable. Do students today still need graphing calculators?

    1. John Brown (no body) Silver badge

      Re: Actually, now I miss my TI-85.

      "Do students today still need graphing calculators?"

      Don't be silly/ They have apps for that :-)

  15. Anonymous Coward
    Anonymous Coward

    The game was developed by Steve Jobs and Steve Wosniak in 1975, following Atari's hit game, Pong.

    So, Woz wrote it while Jobs yelled at him and tried to sell it to the highest bidder?

    1. TRT Silver badge

      It was back in the days...

      when "writing" a computer program meant pretty much using a soldering iron or wire-wrapping tool.

    2. DougS Silver badge

      Enough with the Jobs hate

      Yes, he took advantage of Woz. But Woz would never have been more than just an engineer if not for Jobs, because he not only didn't have the business saavy, more importantly he didn't have the desire for the business saavy.

      Pretty sure Woz is orders of magnitude richer today than he would have been if he'd never met Jobs, since there would have been no Apple, so I doubt he has any complaints.

      1. Martin-73 Silver badge

        Re: Enough with the Jobs hate

        Jobs was a marketer. Marketing is something you wipe off your feet. So... the hate for him will continue

  16. Snowy Silver badge
    Holmes

    A bit late

    The advert has been on the TV for if my memory is correct for over a year?

    1. TRT Silver badge

      Re: A bit late

      Yeah, they should have sped up a bit. Obviously missed that power up.

  17. juice Bronze badge

    They've gone batty...

    So Atari[*] are suing Nestle for a commercial which intermittently shows something vaguely resembling the game Breakout [**]?

    So:

    1) It's not actually a playable game, nor is it something which is being commercially sold

    2) It's clearly intended to be a comedy/parody

    3) There's the best part of 40 years of prior "infringement", from 1980s magazine type-ins to commercial releases such as Arkanoid and the tutorial for pretty much every game-development kit ever made

    Overall, I can see this bouncing out of the courts faster than a speeding tennis ball!

    [*] Or as RPS recently put it: the creature wearing the skin of Atari...

    [**] Said commercial can be viewed here: http://www.eurogamer.net/articles/2017-08-18-kitkat-accused-of-copying-ataris-breakout

  18. SkippyBing Silver badge

    'Jobs said the $5,000 he was paid for Breakout served as seed money for his nascent company, Apple.'

    So what happened to this Apple thing?

    1. John Gamble

      They were bought out by NeXT.

  19. wolfetone Silver badge

    I'd sooner sue them for it being a shit advert.

    1. John Brown (no body) Silver badge

      Have a Break. Have kwik Krap.

  20. Destroy All Monsters Silver badge
    Windows

    The game was developed by Steve Jobs and Steve Wosniak in 1975, following Atari's hit game, Pong. Jobs said the $5,000 he was paid for Breakout served as seed money for his nascent company, Apple

    I rhink the story is that he got 7000, told the Woz that they gave him 4000 and "here's half for you", and then used the 5000 as he saw fit.

    100% Jobs from the get go. SAD!

    1. Anonymous Coward
      Anonymous Coward

      >I rhink the story is that he got 7000, told the Woz that they gave him 4000 and "here's half for you",

      Breakout was designed by Nolan Bushnell and Steve Bristow - they brought in Jobs to do the build who got Woz (then at HP) to do the actual work. Woz only ever got paid $350 and Atari never used his implementation as it was too complicated to manufacture (Woz said they didn't understand it). Jobs role was game testing.

      Nonetheless 'Steve Jobs designed Breakout' is what people will remember...

      1. John Brown (no body) Silver badge

        "Nonetheless 'Steve Jobs designed Breakout' is what people will remember..."

        Some things never change.

  21. Ken Moorhouse Silver badge

    Breakout Box...

    ...Safe from litigation: provided we're talking Serial Comms and not Cereal Bars.

  22. Jeffrey Nonken Silver badge

    I'm mightily curious which "intellectual property" they are alleging has been violated: copyright, trademark or patent?

  23. x 7

    Nestle make crap chocolate anyway.

    Bring back Cadburys

    1. Mystic Megabyte Silver badge
      Stop

      @x 7

      "Bring back Cadburys"

      I stopped buying Cadburys when Kraft bought them. Now I stock up with chocolate at Lidl

    2. Korev Silver badge

      Some of their sub brands like Callier are pretty good, ie the ones that they don't put a prominent logo on...

  24. Colonel Mad

    United States readers

    Hershey own the rights in the US, and have done for many years, obtained from Rowntree, the original manufacturers; so please ignore us Brits and we can get on with loathing Nestle's version of the Kit Kat.

    1. Charles 9 Silver badge

      Re: United States readers

      I believe they also hold US rights to Cadbury Eggs for the same reason. Other brands like Caramello were retained by Cadbury and are handled through subsidiaries.

  25. Florida1920 Silver badge
    Happy

    How sweet it is

    Breakout, the Vimeo video and Steve Jobs are dead. Kit Kat lives on!

  26. DrXym Silver badge

    Can't see the video

    The link doesn't work.

    But from the description I doubt this lawsuit will go anywhere. Nestle will either pay Atari their fuck-off settlement fee, or it'll go through the courts and be ruled a parody and fair use. Either way it's a mercenary cash grab from Atari. I have to wonder what Atari even *is* these days.

  27. Stevie Silver badge

    Bah!

    In the case of Atari vs Nestle:

    Chief Justice Once presiding.

    Resolved: Nestle are very naughty and owe a small fee. No damages accrue on account of people being smart enough to tell a video game from a chocolate bar. Even the very stupid people infesting the world these days.

    Also resolved: Atari are still the same grubbing company that foisted crap games on the world when Nintendo had rebuilt an industry destroyed in a large part by the actions and products of Atari.

    M'lud was heard to mutter on rising for lunch "I wish you would both FOAD".

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