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 …

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  1. frank ly

    @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. Anonymous Coward
          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. Anonymous Coward
            Anonymous Coward

            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 Bronze 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
      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

        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

                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

                  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

          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

      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 Silver badge

          Re: Arkanoid was legally made

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

          1. Charles 9

            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.

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