Nestlé has a fighting chance of securing trademark rights to the phrase ‘have a break’ when marketing its Kit Kat confectionary in Britain.
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Rival Mars UK has opposed the application, claiming the phrase lacks sufficient distinctive character. However, the case was referred from the UK Court of Appeal to the European Court of Justice (ECJ) for a preliminary ruling, and an official has now recommended using focus groups to discover whether consumers associate these words with the snack as a legal test.
“Consumer groups must be shown to understand that the element in question, if used separately, designates a product”, said ECJ advocate general Juliane Kokott.
