“Nestlé knew exactly what it was doing.”

August 18, 2017 10:30 AM

Bad break? KitKat maker accused of copying Atari Breakout game in ad. [The Guardian] “Nestlé has been accused of copying Atari’s classic 1970s video game Breakout [wiki] for a KitKat marketing campaign. In a complaint filed on Thursday in a federal court in San Francisco, Atari said Nestlé 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”. Atari cited an ad titled KitKat: Breakout [Vimeo], in which adults and children sitting on a sofa used paddles to knock down KitKat bars.”
posted by Fizz (30 comments total)

Obviously they were exploiting the name, look, and feel of the twenty million Breakout clones that have come out over the last 40 years.
posted by Pope Guilty at 10:44 AM on August 18, 2017 [17 favorites]

IANAL, but using the actual name "Breakout" seems like it may have been a pretty boneheaded move though.
posted by Zalzidrax at 10:46 AM on August 18, 2017 [5 favorites]

Yeah, it would be one thing if they'd just aped the mechanic like actual games makers did -- were those acted upon? -- but slyly using the Breakout name seems to be beyond the pale to me.
posted by uncleozzy at 10:47 AM on August 18, 2017 [1 favorite]

Post-millennials killed KitKat.
posted by waninggibbon at 10:57 AM on August 18, 2017

the special place it holds among nostalgic baby boomers, Generation X, and even today’s millennial and post-millennial gamers”.

I want to say they are leaning too hard on this, but honestly, Breakout vs. KitKats is not a battle I'd ever want to take sides on. Don't make me choose.
posted by MCMikeNamara at 10:58 AM on August 18, 2017 [10 favorites]

Breakout, invented by Steve Jobs and Steve Wozniak
Jobs was working at Atari and was out of his depth trying to write the game. He secretly subcontracted most of the work to his friend Woz. Jobs lied to Woz about the size of the bonus they earned together, and kept most of the money.
This is all in Woz's autobiography, iWoz.
posted by w0mbat at 11:04 AM on August 18, 2017 [25 favorites]

I didn't realize that Atari was still producing Breakout. I also hadn't seen, eaten or even thought about KitKat in ages. Is this one of those situations where company has to be litigious to defend their trademark? I may be unfairly dismissive of what I thought was a defunct corporation's intellectual property, but I had a ColecoVision. If the ad had been about Zaxxon maybe I would be all het up.
posted by ActingTheGoat at 11:21 AM on August 18, 2017

So why not an awesome breakout clone where you use a ball of capital to destroy blocks of other people's water rights? Or maybe throw around a free sample of baby formula to destroy women's ability to breastfeed (as symbolized by bouncy titty blocks)?
posted by Vulgar Euphemism at 11:31 AM on August 18, 2017 [7 favorites]

I would have thought the intellectual-property rights on Breakout would have expired a long time ago, going back to the late '70s when pretty much every non-Atari gaming system had their own more or less identical Breakout clone. Or when Taito released Arkanoid for the Nintendo Entertainment System. Or when there were roughly a dozen different shareware Breakout clones for Mac and PC in the '90s.

It's a little bit late for Atari to say that any of these are violating their IP when they failed to defend far more blatant infringements going back over 40 years.
posted by Strange Interlude at 11:35 AM on August 18, 2017

Nestle have done many terrible things, but ripping off Arkanoid for an advert, that's just going too far.
posted by Just this guy, y'know at 11:47 AM on August 18, 2017 [4 favorites]

Can't believe Nestlé ripped off Alleyway, Nintendo must be furious.
posted by Mr.Encyclopedia at 12:03 PM on August 18, 2017 [1 favorite]

Eh, any chance someone gets to screw over Nestle, is a fair chance, I say.
posted by evilDoug at 12:09 PM on August 18, 2017 [4 favorites]

ARKANOID FOREVAH
posted by notsnot at 12:31 PM on August 18, 2017 [7 favorites]

I would have thought that Breakout was a reference to the Swing Out Sister classic.
posted by Naberius at 12:38 PM on August 18, 2017 [8 favorites]

Would have been all kind of better with Tempest. Just sayin'.
posted by Samizdata at 12:52 PM on August 18, 2017

I would have thought that Breakout was a reference to the Swing Out Sister classic .


I hope someone else enjoys this dumb video I was inspired to make.
posted by MCMikeNamara at 12:58 PM on August 18, 2017 [3 favorites]

I hope someone else enjoys this dumb video I was inspired to make.

Very nice. Though I feel compelled to point out that Edgar Wright would have had the ball synced to the music better.
posted by Naberius at 1:02 PM on August 18, 2017 [1 favorite]

I also hadn't seen, eaten or even thought about KitKat in ages.

What planet are you from?
posted by Melismata at 1:19 PM on August 18, 2017 [3 favorites]

Isn't Atari one of these shambling zombie IP companies that only exists in a lawyer's desk drawer? Even a small campaign budget for Nestlé could buy them off.
posted by scruss at 1:30 PM on August 18, 2017 [2 favorites]

The vimeo video got taken down.
posted by cashman at 1:57 PM on August 18, 2017 [1 favorite]

Speaking of chocolate-based IP infringement, these chocolate eating aliens were close enough to the ones in Galaxy Quest for me to wonder at what point in the ad they'd turn and tear someone's face off.
posted by Jon Mitchell at 2:08 PM on August 18, 2017

In other chocolate bar trademark lawsuit news, Poundland has brought out a Toblerclone bar, claiming that the recently diminished triangles are no longer distinctive.
posted by lucidium at 3:27 PM on August 18, 2017 [2 favorites]

IANAL, but using the actual name "Breakout" seems like it may have been a pretty boneheaded move though.

There are at least three Breakout games, that use that name as part of the title, in the 3DS eShop right now.

Breakout is one of the most copied games of all time. There's a few games whose mix of popularity, ease of implementation and genericness have contributed to make them, over the years, ready targets for shareware and mobile developers looking to make an easy buck, and Breakout is definitely one of them. (Others include Tetris, Solitaire and Mahjongg Solitaire, aka "Shanghai.")

Why don't they go after all those games? Simply, Nestle is where the money is.
posted by JHarris at 6:41 PM on August 18, 2017

By the way, this is as good a place as any to relate something I learned about KitKat, namely, it is much much better in other countries than it is in the US, and why.

KitKat was created by British company Rowntree's of York, then acquired by Nestle. But before that purchase Rowntree's had granted a license to H.B. Reece, a division of Hershey's, to produce KitKats in the US. As a result, only in the United States, KitKats are made by Hershey, and with terrible Hershey's chocolate, while everywhere else there has been a great blossoming forth of individual KitKat flavors, including, in Japan, stores that sell nothing but KitKat varieties.

Lest this make you angry at Hershey's... well, it should, but the situation has also harmed them. KitKat is a major property for Hershey's, but under the terms of the license they lose it if the company is sold, which has sabotaged at least one attempt for Hershey's to find a buyer.
posted by JHarris at 6:50 PM on August 18, 2017 [5 favorites]

I wouldn't be too sad about KitKat chocolate quality, JHarris. My brother's ex-Rowntree of York, and apparently the chocolate needed to use a similar souring process to Hershey's to balance the chalkiness of the wafers. ISTR they used to (maybe still do?) put some kind of mineral in the wafers (I wanna say gypsum, but possibly chalk) to get them strong enough to hold together.

Ah, memories of the friends-and-family special tour of the old Haxby Road plant: the huge melangers, the bright pans for coating Smarties, heated chocolate pipes everywhere and the bracing smell of the Polo sintering room …
posted by scruss at 6:56 AM on August 19, 2017

Isn't Atari one of these shambling zombie IP companies that only exists in a lawyer's desk drawer?

Nah, they're still in the game (I guess you could argue whether there's any of the original DNA involved besides selling the legacy IP for crummy plug and play toys and branding). They're supposedly aiming to release a new console!



Man, Enter the Matrix sure was a shitty game.
posted by nanojath at 8:17 AM on August 19, 2017

They're technically around, but they are not the classic Atari; they're Infogrammes that's changed their name to match that of an IP they purchased.

Of course, it's not definitely what you mean by classic Atari. After the crash of '83, the company was split into a home entertainment company, Atari Inc., and an arcade game company, Atari Games. Atari Inc. was bought by Jack Tramiel and eventually folded after the Jaguar failed. Atari Games was passed around, was owned by Namco for a while, and eventually became owned by Midway, which was owned by Williams, then called WMS. They got renamed for a short period to Midway Games West, because of a deal with Infogrammes to let them use the Atari name exclusively, but then got shuttered along with Midway when WMS got out of home and arcade gaming. (They still make casino games, mind you, so Konami's not the only company to pretty much abandon typical electronic entertainment to make gambling devices.)

Meanwhile -- Atari-really-Infogrammes only owns the rights to early Atari arcade properties, pretty much everything before Marble Madness. The game in question, Breakout, is the very same game that Atari outsourced to Steve Jobs who got Steve Wozniak to make for him. Wikipedia tells us that its hardware design inspired major elements of the Apple personal computer line. It is a discrete logic game, lacking a microprocessor, so technically it cannot be emulated, only simulated.

It was made in 1976, over 40 years ago. It hit arcades two years before Space Invaders, making it a real relic.
posted by JHarris at 9:43 PM on August 19, 2017 [1 favorite]

Infogrames made Alone in the Dark (and thereby invented the 3D-models-on-prerendered-backgrounds survival horror genre out of the bones of Sweet Home) and published UT99 on PS2 and I can't think of anything else they ever made that was worth mentioning. Certainly they've made some good purchases of other companies.
posted by Pope Guilty at 9:52 PM on August 19, 2017

Correction: reading further on the Wikipedia page claims Atari didn't use Woz's design but used one made in-house design. I guess a Woz-designed arcade Breakout would be a little too perfect.
posted by JHarris at 12:36 AM on August 20, 2017

The Revenge of D'Oh!
posted by loquacious at 5:14 PM on August 20, 2017