December 2002
Courts and Mars won't let Kit Kat "Have a Break"
Kit Kat is undoubtedly amongst Britain's most recognisable brands and has had the slogan "Have a break, have a Kit Kat" since 1957. Both the slogan and the name have been registered trade marks for years however in 1995 Kit Kat filed an application for a trade mark solely in the phrase "have a break". In 1998 Mars filed an opposition against this.
Having failed at the hearing in May to register a trade mark in the slogan "Have a Break", Nestlé have now failed in an appeal bid which would have helped prevent Mars from allegedly planning to release a chocolate bar cheekily named "Have a Break".
Nestlé carried out a survey to try and show that people associate the phrase with Kit Kat however in the Trade Mark Hearing Appeal Justice Rimer felt that the results just showed that "have a break" reminds people of Kit Kat but doesn't necessarily make them think that it is a Kit Kat. He also felt that most consumers tend to eat snacks during their breaks and therefore "have a break" would have no inherent distinctiveness in relation to snack products.
Nestlé attempted to show that the mark had gained distinctiveness through its use alongside Kit Kat however Justice Rimer felt that there had been little use of just the phrase "have a break" without the addition of the name Kit Kat somewhere in their advertising. The trade mark was therefore denied.
BRIFFA comment:
A trade mark is much more likely to succeed if you can show that the name has gathered distinctiveness through use. Therefore use your desired trade mark wherever possible for example on packaging, promotional materials and letterheads adding ™ to the end of your word or design. (but not ® as this can only be used on a registered trade mark).