In that connection Article 3(1)(b) is of particular relevance:
Grounds for refusal of registration of a trade mark are contained in Article 3. ‘A trade mark may consist of any sign capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.’ģ. Article 2 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (2) defines trade marks as follows: The nub of the legal dispute is the question whether this kind of use of a sign can result in distinctiveness for trade mark purposes or whether it precludes recognition as a trade mark.Ģ. On this occasion the dispute turns on whether the advertising slogan ‘HAVE A BREAK’ was able to acquire distinctive character as a result of its use as a part of the registered trade mark ‘HAVE A BREAK … HAVE A KIT KAT’. In the present case the Court of Justice is once again asked to express a view on the rules concerning the distinctive character of trade marks. (Trade marks – Directive 89/104/EEC – Lack of distinctive character – Acquisition of distinctive character by use)ġ. (Reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division))