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Swiss chocolate giant Nestle SA cannot yet trademark its slogan “Have a Break” because it still lacks specific character, a top European court adviser said Thursday. Nestle uses the phrase to support its Kit Kat candies in Britain with the slogan “Have a Break … Have a Kit Kat,” which already is protected. Even if an average consumer completes the phrase “Have a Break” with “Have a Kit Kat,” Advocate General Juliane Kokott of the Luxembourg-based European Court of Justice said that “on its own that reflex reaction is not sufficient to prove distinctive character” to be an automatic trademark. She said the phrase must go further than make consumers wonder whether the product came from the company. In her conclusion, she said “the relevant consumer groups must be shown to understand that the element in question, if used separately, designates a product as originating from a specific undertaking, this distinguishing it from products from other undertakings.” The opinions of the Advocate General are followed in about 80 percent of the cases by the full court. A decision is expected within several months. Nestle said it was up to the British courts to assess the case. If confirmed by the full EU court, “this now means that the facts in the case can be reconsidered by the British courts applying the right legal test,” said Nestle counsel Jane Mutimear from the law firm Bird & Bird. Nestle applied in 1995 to register the “Have a Break” phrase for all chocolate products. Rival Mars Inc. objected. British authorities blocked the Nestle application, saying the phrase lacked any inherent distinctive character. Nestle appealed and the British court asked the European Court to issue an opinion. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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