July 2005
Take a break.....Nestle wins battle in choco wars
The Court of Justice of the European Community has decided that Nestle's slogan 'have a break' can be registered as a trade mark. This puts an end to this particular war between rival chocolate manufacturers Nestle owners of the Kit Kat brand and Mars who opposed the application for the registration of 'have a break' on the grounds that the phrase was 'devoid of distinctive character' on the basis that the phrase was used in the past in conjunction with the words 'have a Kit Kat'.
The decision of the European Court ends a journey of this case through many courts. Starting with a decision of the Patent Office that the opposition by Mars was justified the case was referred to the Chancery Division of the High Court who agreed with the Patent Office. From there Nestle appealed to the Court of Appeal who held that the phrase 'have a break' was devoid of inherent distinctive character but that distinctive character could be acquired through use. The court then referred the case to the European Court to decide whether a phrase used in conjunction with another phrase would acquire distinctiveness through use - and this referral gave rise to the judgment above.
BRIFFA Comment:
While it is tempting to wonder whether the owners of the Kit Kat Brand shouldn't just 'Take a Break' but 'Get a life' cases such as these illustrate the power of brands. On the premise that what brand owners do to protect their brands is in proportion to the value they reap from sales, the Kit Kat brand must be very valuable indeed and even more so now Nestle has secured registration of 'Have a break'. Feeling peckish???