Mars bars Nestlé bid to ‘have a break’

LAST July, legal brains wrestling with the question of the famous Kit Kat advertising slogan decided to have a break and pass the matter on to the European Court of Justice.

The court of appeal in England could not resolve the issue of whether Nestlé could trademark the words “have a break” separately from the full “have a break, have a Kit Kat” slogan.

That issue is still before the European Court and no date has yet been fixed for a hearing, a spokesperson for the company said yesterday.

Nestlé’s attempts to register the shorter phrase as a trademark have been opposed by rival Mars, which claims the words have no distinctive character. Mars wants to bring out a new chocolate bar called Have a Break.

A trademarks hearing officer and the high court have both found in favour of Mars, but the three senior judges on the appeal panel have now referred the matter to the European court.

One of the judges, Sir Andrew Morritt, said the problem at issue was whether the phrase “have a break” was distinctive because of its use as part of the Kit Kat slogan. He said the matter was “of far-reaching importance in the European community.”

Nestlé went to the high court to appeal against a Trademarks Registry decision of May 2002, which refused it permission to register the three words “have a break” even though the full slogan is registered.