KitKat maker Nestle has been accused of copyright infringement... by Atari

 
Courtney Goldsmith
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Atari accused KitKat of copying one of its video games in advertisements without its permission (Source: Getty)

KitKat is involved in another rights row, but this time it's nothing to do with its chocolate bar.

Gaming company Atari has accused KitKat's owner, Nestle, of copyright and trademark infringement and unfair competition because it used its 1970s video game Breakout without permission in a KitKat marketing campaign.

Breakout, which was the predecessor to the Atari's iconic game Pong, was created by Steve Wozniak and Apple co-founder Steve Jobs. It involves players knocking down rows of coloured bricks with a paddle.

Atari filed the complaint yesterday in federal court in San Francisco. It said Nestle knowingly exploited the Breakout name, look and feel through social media and a video that ran in the UK in 2016.

PRODUCER: Dale Healy - 'Kit Kat: Breakout' (Commercial - TVC) from Undercranked on Vimeo.

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."

The France-headquartered company is seeking three times Nestle's profit from the alleged infringement, plus triple and punitive damages. Nestle SA, Nestle UK and Nestle USA were named as defendants.

Nestle today 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.

Trademark debate

This lawsuit follows a row between Nestle and Cadbury over the shape of the KitKat chocolate bar.

In May, the Court of Appeal rejected claims the four-fingered bar should be given trademark protection after a High Court judge last year said the shape could not be patented.

Elsewhere in the chocolate industry, Poundland has claimed its Toblerone spin-off is not an infringement of an EU trademark registered by Toblerone owner Mondelez in 1997.

The budget chain argued Mondelez "irretrievably abandoned" the trademark when it increased the size of the gaps between the bar's iconic triangles, according to court documents seen by the Guardian.

Read more: Shrinkflation: Yes, sweets are getting smaller, but prices aren't falling

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