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Last Updated: Friday, 25 July, 2003, 11:59 GMT 12:59 UK
Judges opt to Have a Break
Kit Kats
The full catchphrase is infamous
Nestlé's attempt to trade mark the phrase "Have a Break" has been passed on to the European Court of Justice by British judges.

The Court of Appeal said the multinational's efforts to register the first three words of the famous "Have a Break, Have a Kit Kat" catchphrase - itself a trade mark - were a matter for EC law.

But confectionery rival Mars says the words are not distinctive to the Kit Kat brand and opposes the trade mark, a view backed by a trade marks hearing officer and upheld by a High Court judge.

Now the battle will move on to Europe after three judges at the Court of Appeal - including the head of the Chancery Division, Sir Andrew Morritt - said they could not make a decision on the matter.

The question was: "Have the words 'Have A Break', for which registration as a trade mark is sought, in fact acquired a distinctive character as a result of the use made of them by Nestlé in relation to chocolate products?"

To use another colloquial English phrase, Nestlé want the penny and the bun
Lord Justice Sedley
Sir Andrew said "Have A Break, Have A Kit Kat" was a well-known phrase to people "whether chocolate eaters or not".

But he said the issue of "Have A Break" alone was more contentious.

"If the phrase 'Have A Break' prompts the average consumer of chocolate to respond 'Have A Kit Kat' and if the response is distinctive in a trade mark sense then it could well be that the phrase is itself distinctive in that sense."

Lord Justice Mummery agreed the case should go to Europe and said: "Are the words 'Have A Break' capable of distinguishing the chocolate products of Nestlé from those of other undertakings?"

Lord Justice Sedley said: "The endeavour to appropriate the use of the first three words seems to me to involve forfeiting the very element of combination and of double-entendre on which the claim to acquired distinctiveness is built.

"To use another colloquial English phrase, Nestlé want the penny and the bun."

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