Trademark

by Timothy Geigner


Filed Under:
candy, kitkat, trademark, trolling, video games

Companies:
atari, nestle



Atari Gets The Settlement It Was Surely Fishing For Over An Homage To 'Breakout' In KitKat Commercial

from the gaming-the-system dept

As readers of this site will know, once-venerated gaming giant Atari long ago reduced itself to an intellectual property troll mostly seeking to siphon money away from companies that actually produce things. The fall of one of gamings historical players is both disappointing and sad, given just how much love and nostalgia there is for its classic games. It was just that nostalgia that likely led Nestle to craft an advertisement in Europe encouraging buyers of candy to "breakout" KitKats and included imagery of the candy replacing a simulation of a game of Breakout. For this, Atari sued over both trademark and copyright infringement, stating for the latter claim that the video reproduction of a mock-game that kind of looks like Breakout constituted copyright infringement.

As we discussed in that original post, both claims are patently absurd. Nestle and Atari are not competitors and anyone with a working frontal lobe will understand that the ad was a mere homage to a classic game made decades ago. If the products aren't competing, and if there is no real potential for public confusion, there is not trademark infringement. As for the copyright claim, the expression in the homage was markedly different from Atari's original game, and there's that little fact that Nestle didn't actually make a game to begin with. They mocked up a video. Nothing in there is copyright infringement.

It was enough that I'm certain some of our readers wondered why Atari would do something like this to begin with. The answer is the recent news that a settlement has been reached in the lawsuit, and it was almost certainly that settlement that Atari was fishing for all along.

Vintage gaming company Atari has settled a lawsuit accusing Swiss foods giant Nestle of using one of its classic video games to sell Kit Kat bars to nostalgic gamers without permission. On Wednesday, U.S. District Judge Yvonne Gonzalez Rogers approved Atari’s request to voluntarily dismiss the case with prejudice.

Both parties reached a settlement during a conference in Magistrate Judge Sallie Kim’s courtroom on Dec. 12, 2017, according to court records. The terms of the agreement are confidential.

So, while we don't know the terms of the settlement, it's incredibly common for megaliths like Nestle to throw settlement money at pests like Atari to make them go away. The settlements are often not anything like the potential rewards for the plaintiff if the case had gone to trial, but that's entirely besides the point. The point is to get the settlement. It's essentially free money, after all, reliably gained by filing lawsuits trolling successful companies with spurious legal claims that at best skirt the line of what intellectual property laws actually say.

It's for that reason that trolls like Atari seek treble and punitive damages in these suits, merely as a way to alter the risk calculation for the legal teams of their victims. A company like Nestle, worth hundreds of billions of dollars, has easy math to do when it comes to deciding how to make this all go away. The problem with this is, of course, that not every company has billions of dollars of revenue coming in. It's the smaller companies that are truly victimized by IP trolls that fill their war chests with these kinds of easy settlements.


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  • identicon
    Anonymous Coward, 1 Feb 2018 @ 7:51pm

    Wrong way to go about it

    A company like Nestle, worth hundreds of billions of dollars, has easy math to do when it comes to deciding how to make this all go away.

    I believe there is an old saying "Once you pay Danegeld, you never get rid of the Dane".

    The proper way, in my opinion, to go about this would be to buy Ninteno, then fire the C level execs and legal folks.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Feb 2018 @ 7:54pm

      Re: Wrong way to go about it

      I meant Atari.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 2 Feb 2018 @ 5:55am

        Re: Re: Wrong way to go about it

        I'm sure they'd have loved that more. "Sure, you can buy us out... for $10B!" The problem with your solution is that Atari is owned by the execs and lawyers, now. They bought it for the express purpose of lawsuits. So they aren't going to sell it cheap, not with "wins" like this.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Feb 2018 @ 7:58pm

    Yes, yes! I have PROOF that Masnick is corporatist, globalist, irrelevant, and ad hom!

    Google, NSA, Snowden, Dotcom, SOPA, fanboys! I would boldface but I can't get over how morally superior I am to all of you pirates!

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 1 Feb 2018 @ 8:11pm

    Whatever ever value there is to the name, Atari owns it, NOT Nestle.

    "it's incredibly common for megaliths like Nestle"

    FIRST, do you know, or have ANY idea what a "megalith" is? Prove it by quoting a definition. Because I say you are an careless ignorant boob and/or drunkenly mistaken.

    2nd, a "megalith" should have lawyers that know better, so boo hoo. Trying to plug "the little guy" as hypothetical victim here fails, just more of Techdirt's characteristic exaggemeration in absence of any definite harm.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 1 Feb 2018 @ 8:12pm

      Re: Whatever ever value there is to the name, Atari owns it, NOT Nestle.

      There, you see. I've proved it for myself by repeating "ever" in subject line. That's because laughing at Geigner, as ever.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Feb 2018 @ 8:14pm

        Re: Re: Whatever ever value there is to the name, Atari owns it, NOT Nestle.

        You have a full diaper don’t you.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Feb 2018 @ 11:40pm

        Re: Re: Whatever ever value there is to the name, Atari owns it, NOT Nestle.

        Keep gobbling that Atari corporate cock, blue boy. Support those corporations like there's no tomorrow!

        reply to this | link to this | view in chronology ]

    • icon
      Dark Helmet (profile), 2 Feb 2018 @ 5:50am

      Re: Whatever ever value there is to the name, Atari owns it, NOT Nestle.

      My use of "megalith" is what's called, among the learned, a "metaphor". No, I don't actually think that Nestle is a large rock serving as an ancient monument, but they are analogous to such in the confections industry.

      ......you big boob.

      See how metaphors work?

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 1 Feb 2018 @ 9:54pm

    I want to feel bad, but corporations have been engaging in IP warfare for years. Even some of the 'good guys' can't look away from the money a questionable patent can rake in. The legislatures around the globe are willing to hand more & more power & protection to IP, why are we shocked it ends up leveraged to extract cash from each others coffers?

    The imaginary 100 Trillion Dollars 'stolen' by IP theft can be recovered the lawyers tell them. Each garden getting more walled & more hostile while passing the costs onto consumers who didn't think there was a KitKat Breakout game but will pay a bit more for kitkats.

    Once upon a time they tried to make new cool things, now they are focused on how they can twist IP to cover more things & get paid again and again.

    We built the tools & made it to the moon using our ideas.
    Today some chick who rolled a sex tape into an empire is worth a stupid amount of money b/c makeup.

    A majority of people have given up on creation, someone will claim to own the idea or concept & it isn't worth trying when you know you'll be killed by the parasites who offer nothing to the world but 'interesting' paths to say a filing cabinet is totally the same as a hard drive because they both have folders so we are owed 32 billion!!!

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 2 Feb 2018 @ 6:03am

      Re:

      Once upon a time they tried to make new cool things, now they are focused on how they can twist IP to cover more things & get paid again and again.

      Those at Atari who used to make things have long since moved on, many retired, and some even dead. The problem was that the last time Atari passed hands, the 'people' who bought it were lawyers with a plan to monetize the IP. The moment you learned who bought Atari, you knew it was over.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 2 Feb 2018 @ 9:18am

        Re: Re:

        Indeed. I talked about this in the previous thread; here's an excerpt:

        • Atari Inc (1972-1976)
        • Warner/Atari Inc (1976-1984)
        • Tramiel/Atari Corp (1984-1996)
        • JTS Corp/Atari Corp (1996-1998)
        • Hasbro/Atari Interactive (1998-2001)
        • Infogrames/Atari SA (2001-present)

        The current Atari has nothing to do with the original company; it's the fifth-hand buyer of that company's assets.

        reply to this | link to this | view in chronology ]

        • icon
          ECA (profile), 2 Feb 2018 @ 12:57pm

          Re: Re: Re:

          And WHEn does game/program CR end??
          Atari, has been releasing the SAME games, over and over, for ANY console/PC out there...Every year..
          Since the original was created for the Atari 2600..1976..
          That is over 40 years.
          https://www.youtube.com/watch?v=MlNqaKoccQU
          NOT even on the same hardware..(dont think there was any hardware)
          https://youtu.be/F1thEPOa9Ss?t=1m50s

          And has been Copied so many times, with MANY versions and variations..
          But a Claim that they damaged Many other titles, because of this..

          Damage? Why not consider it an Advert..FREE ADVERT..
          I havent seen 1 Atari commercial in YEARS..

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    satta king, 2 Feb 2018 @ 2:58am

    blog

    Great information i really want to know this

    reply to this | link to this | view in chronology ]

  • identicon
    David, 2 Feb 2018 @ 3:08am

    This is so sad.

    These days you can make a whole lot more money with court games rather than video games.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Feb 2018 @ 5:07am

    Hm, who knew Yar's Revenge was a real thing

    reply to this | link to this | view in chronology ]

  • icon
    amoshias (profile), 2 Feb 2018 @ 6:59am

    Remember that Nestle wasn't just thinking 'how can I get out of this for the least money,' but 'how can I get out of this for the least money while still preserving my ability to do the exact same thing Atari is doing in the future without looking hypocritical."

    reply to this | link to this | view in chronology ]

  • identicon
    Valkor, 2 Feb 2018 @ 9:18am

    Other homage

    Now I'm asking myself this question:
    Did Google have to pay license to Atari for the "Atari Breakout" Google image search easter egg?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Feb 2018 @ 12:26pm

      Re: Other homage

      They probably gave them the customary 70-30 split of revenue. Too bad for Atari that 70% of 0 is still 0.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Feb 2018 @ 10:51am

    Atari doesn't exist anymore.

    "Atari" is just someone with money using a defunct name and paying off the government to let them keep doing it.

    Not a single original employee remains, it's just a name-front the same as British Gas etc.

    reply to this | link to this | view in chronology ]


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