There was no innate distinctiveness in the phrase "Have a break", the court agreed, and Nestlé were not able to produce enough evidence of independent use of the words "Have a break" (in isolation from "Have a Kit Kat") to establish that distinctiveness had been acquired by usage. This had to be capable of taking it out of the realms of a purely descriptive, generic English phrase and into the category of a branding device which was distinctive in the minds of the public of a product from one particular manufacturer. Mars reminded the Court that to be registrable, a trademark had to have either innate or acquired distinctiveness. In 1995, however, Nestlé filed an application to register only the words "Have a break" as a UK trademark.
A 2002 survey showed that 98% of Britons would respond to "Have a break" with "Have a Kit-Kat" and it was the combination of these two phrases, in slightly differing forms, which had been the subject of UK registered trade marks since 1978. Since 1957 Nestlé had been using the phrase "Have a break" in connection with advertising for its Kit-Kat product. Where: Chancery Division of the High Court, London Who: Societe Des Produits Nestlé SA -v- Mars UK Limited
0 kommentar(er)
