Delhi High Court paves way for trademark registration of Agatha Christie's 'And Then There Were None' 80 years after publication

'And Then There Were None', one of the most celebrated books in crime fiction genre authored by Agatha Christie, is set to receive trademark registration more than 80 years after its publication with the Delhi High Court ruling in favour of Christie's company which had sought trademark registration [Agatha Christie Limited v Registrar of Trademarks]..The development came about with Justice C Hari Shankar setting aside the order passed by Registrar of Trademarks in January 2021 rejecting the application filed in 2017 by Agatha Christie Limited, the company set up by Christie in 1955 and now operated by her grandson. The Court was informed that the application was rejected on the ground that the name “And Then There Were None” was not distinctive..However, Justice Shankar has now held that the order cannot sustain either on the facts or in law as it fails to understand how “And Then There Were None” is, by any reckoning, not a distinctive mark, when seen vis-à-vis the categories of services in respect of which registration was being sought.“The impugned order does not allege that the mark, or any mark deceptively similar thereto, was ever registered, or even in use in respect of goods or services identical or similar to the marks in respect of which registration was sought by the appellant. Nor could it be alleged that the mark “AND THEN THERE WERE NONE” was descriptive of the services in respect of which its registration was sought by the appellant,” the High Court said. .The Court noted that the Trade Marks Act, 1999 says that names, words and combinations or are “marks” within the meaning of the said Act and the only criteria of a “trade mark” is it must be capable of being represented graphically and must be capable of distinguishing the goods of one person from those of others.Justice Shankar said that there is no finding or observation by the author of the Trademark Registrar's order that the name “And Then There Were None” is not capable of being represented graphically or incapable of distinguishing the services being provided by the appellant from those provided by others.“In fact, the name being the title of the most well-known work of fiction written by Agatha Christie, it is also capable, prima facie, of creating an association between the name and the appellant, which is a company established by Agatha Christie herself. It can, therefore, legitimately be used in the context of services which the said company provides or intends to provide,” Justice Shankar wrote..He added that if the mark is distinctive and is not identical or confusingly or deceptively similar to any mark which is registered or in use from a prior date, registration of mark is a matter of right which was denied to the appellant company by that order.“The impugned order is also liable to be set aside, in my view, as being unreasoned. The right to register a mark under which one intends to provide goods or services is a valuable right, partaking of the character of Article 19(1)(g) of the Constitution of India. Any decision not to allow registration of a mark has, therefore, to be informed by reasons which should be apparent on the face of the decision. The impugned order, in my view, is bereft of sufficient reasons to justify the decision taken therein,” the High Court said..Based on these grounds the High Court remitted the matter to the officer of Registrar of Trade Marks directing it that if the application does not suffer from any fatal infirmity, it should be registered under Classes 9, 16 and 41 of the Trade Marks Act..While Christie’s company was represented by Advocates Aamna Hasan, Vaibhav Vutts and Shrutika Misra, Central Government Standing Counsel (CGSC) Harish Vaidyanathan Shankar along with Advocates Bushra Kazim and Karan Chhibber appeared for the Registrar of Trademark..[Read Judgment]