Atari sues Nestle, says Kit Kat video game ad violates Breakout copyright

Joe Mullin

2AM films / Nestle

Atari claims that a commercial for Nestle's Kit Kat candy bars violates the copyright and trademark rights of Breakout, Atari's iconic 1975 video game.

Nestle's 30-second spot "leverage[s] Breakout and the special place it holds among nostalgic Baby Boomers, Generation X, and even today's Millennial and post-Millennial 'gamers' in order to maximize the advertisement's reach," say Atari's lawyers in the complaint (PDF), filed Thursday in a California federal court.

"Nestle simply took the classic Breakout screen, replaced its bricks with KIT KAT bars, and invited customers to "Breakout" and buy more candy bars," the complaint states.

The ad, which only aired in the United Kingdom, was viewable via Vimeo on Friday but has since been removed. It portrayed gamers of different ages playing a game of Breakout in which the bricks that the players break are replaced by chocolate bars.

A screenshot of the original Breakout.

Nestle's version of "Breakout Breakers," on the Kit Kat Facebook page.

Nestle's Twitter advertisement for Kit Kat, part of the same ad campaign.

Atari today is a very different corporate entity from the one that created Breakout, having gone through a series of sales and mergers. The company hasn't hesitated to enforce its game trademarks and has gone so far as to defend its exclusive right to use the term "Haunted House" in video games.

The complaint contains some of the history of the classic game, which was conceptualized by Atari founder Nolan Bushnell and created by Steve Jobs and Steve Wozniak.

Atari's goal in the 1970s was to create a more efficient version of the popular game Pong. Bushnell challenged his engineers to reduce the number of logic chips needed from 100 to 175 to below 75 chips.

Jobs claimed he could hit the mark in four days. He hired Wozniak by offering to pay him half of the $5,000 bonus. Ultimately, Wozniak was able to deliver an initial prototype within 72 hours that used just 20 to 30 circuits. The final prototype utilized 44 chips.

The game was a "huge hit," and it inspired sequels like Super Breakout and Breakout 2000. An iPhone version of Breakout has been downloaded more than two million times.

The game is "an icon of early Silicon Valley ingenuity" and a touchstone of 1970s and 1980s culture, claims Atari.

Atari has claimed the ad campaign infringes its copyrights and trademarks on the various Breakout games. The company also claims unfair competition and trademark dilution. Nestle hasn't yet responded to the allegations.