Food companies seeking trademark registration for brands or slogans should demonstrate their popular association with particular products amongst consumers and industry professionals, the European Court of Justice has ruled.
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Giving guidance to the UK Court of Appeal over whether Nestlé can secure trademark rights to “have a break…” for Kit Kat confectionary, the ECJ said companies should demonstrate a sufficient “proportion of (a) relevant class of persons…because of the mark, identify goods as originating from a particular undertaking”. Also, opinions of “chambers of commerce and industry or other trade and professional associations” should be considered, plus assessments about market share and how long a mark has been used.
