Former gaming giant, Atari, is suing candy maker, Nestle, alleging trademark and copyright infringement over a new KitKat advertisement. Atari claims that the KitKat advertisement mimics the popular Breakout videogame replacing the bricks with KitKat candy bars.
The litigation may see the 9thCircuit’s Nominative Fair Use defense raised to refute Atari’s trademark infringement claims. This would mark the first time the 9th Circuit’s test has been genuinely fleshed out since its creation; the defense is unique because it shifts the burden to the plaintiff to prove that the defense does not apply.
One prong of the test involves determining whether the alleged use suggests a sponsorship or endorsement by the owner of the trademark. Much like the test for determining a likelihood of consumer confusion, another burden Atari will need to meet, this requires Atari to establish that ordinary consumers would be confused as to the origin or affiliation of the allegedly infringing product.
Atari’s complaint does not go into detail about the consumer confusion, but Atari’s Breakout game has become iconic since its release in 1976.
Source: Inside Counsel