The European Court of Justice (ECJ) has recently made its decision in the landmark case of Societe des Produits Nestle SA v Mars UK Limited. The ECJ’s decision was issued in response to a reference from the English Court of Appeal, which had been tasked with deciding whether or not to allow Nestle’s UK trademark application for the mark ‘Have a Break’ to proceed. Nestle already owns UK registrations for ‘KitKat’ and ‘Have a Break, Have a KitKat’ for various chocolate, confectionery and biscuit products.
Following a number of earlier unsuccessful attempts, Nestle applied once again in March 1995 to register ‘Have a Break’ as a UK trademark. Mars UK opposed the application, and the UK Registry and High Court agreed with Mars that Nestle’s mark lacked distinctive character for the goods concerned and so should not be registered.
