(Reuters) - A new lawsuit accuses Nestle SA (NESN.S) of blatantly violating the rights of Atari (ATAR.PA) by using without permission the classic 1970s video game “Breakout” in a new marketing campaign for its Kit Kat chocolate-covered wafers.
In a complaint filed on Thursday in federal court in San Francisco, Atari said Nestle knowingly exploited the “Breakout” name, look and feel through social media and a video, hoping to leverage “the special place it holds among nostalgic Baby Boomers, Generation X, and even today’s Millennial and post-Millennial ‘gamers.'”
Nestle did not immediately respond to requests for comment after regular business hours.
Created as a successor to “Pong” by Steve Wozniak with help from Apple co-founder Steve Jobs, “Breakout” requires a player to knock down rows of colored bricks with a paddle.
According to Atari, “Nestle simply took the classic ‘Breakout’ screen, replaced its bricks with Kit Kat bars, and invited customers to ‘breakout’ and buy more candy bars.”
Atari's complaint includes a link to an ad for Kit Kat Bites, titled "Kit Kat: Breakout," showing adults and children seated on a coach, using paddles to knock down Kit Kat bars. ((vimeo.com/204352144))
“The infringing conduct in this case is so plain and blatant that Nestle cannot claim to be an ‘innocent’ infringer,” the complaint said. “Nestle knew exactly what it was doing.”
Atari accused Nestle of copyright and trademark infringement and unfair competition.
It 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.
The case is Atari Interactive Inc v Nestle SA et al, U.S. District Court, Northern District of California, No. 17-04803.
Reporting by Jonathan Stempel in New York; Editing by Leslie Adler