HAVE A BREAK CASE GOES TO ECJ

Société des Produits Nestlé SA v Mars UK Ltd is the latest UK trade marks case to go to the European Court of Justice (ECJ) in Luxembourg. Nestlé's slogan "Have a break ― have a KIT KAT" was extremely well known in the UK, where it had been used extensively for many years in adverts for KIT KAT chocolate bars. When Nestlé applied to register the words HAVE A BREAK as a trade mark, Mars opposed on the grounds that the mark was not distinctive. The Hearing Officer held that HAVE A BREAK had not acquired distinctive character through use made of it before the date of the application. The sticking point was that he was not prepared to accept that extensive use of "Have a break ― have a KIT KAT" constituted evidence of the distinctiveness of the words HAVE A BREAK by themselves.



Nestlé's appeal to the High Court having failed, the company appealed further to the Court of Appeal, which has asked the ECJ whether the distinctive character of a mark referred to in Article 3(3) of Council Directive 89/104 (to approximate the laws of the member states relating to trade marks) and Article 7(3) of Council Regulation 40/94 (on the Community trade mark) may be acquired following or in consequence of the use of that mark as part of or in conjunction with another mark.



If the ECJ answers "yes", the decision of the judge and the hearing officer will be set aside and the matter remitted to a different hearing officer. If the ruling is in the negative, the conclusions of the judge and the hearing officer will be held to be correct as a matter of law.



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