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24 December 2021
The Delhi High Court has opened the way for the Agatha Christie mystery novel and bestseller “And Then There Were None” to be registered as a trademark more than 80 years after its initial publication in the United Kingdom.
Justice C Hari Shankar of the Delhi High Court quashed a January 14, 2021 order by the Registrar of Trademarks refusing Agatha Christie Limited’s application to register the world-famous title.
Filed in 2017, the application was declined because, as the Registrar of Trademarks cited, the book title “And Then There Were None” lacked distinctiveness.
However, Shankar stated that such order cannot be sustained on facts or in law. The Court does not see why the Registrar of Trademarks considered the mark not distinctive considering the categories of goods and services under which it was supposed to be registered.
Savitha K Jagadeesan, senior resident partner at Kochhar & Co. in Chennai does not agree that the mark is not distinctive. For one, “And Then There Were None” has built up an identity of its own over the years since it hit UK bookstores in 1939. Though it was first released under the title “Ten Little Niggers,” the crime thriller’s US edition carried the title “And Then There Were None” when first published in 1940. It is one of the world’s top bestsellers of all time, with more than 100 million sold copies.
Second, the mark clearly did not directly describe or suggest the goods for which it is applied for.
“The mark has definitely attained popularity amongst the public, all the correct tick boxes which means the mark deserved protection from others exploiting its reputation. The words sought to be applied as a mark, was a coined term and it is not only a book but has been made into movies and serials in several languages including Tamil which suggests that the mark has reached the minds of the public and is associated with the writer and her legacy. Any use of the mark by others for their goods and services would lead them to capitalize on the popularity of the mark which would be to the detriment of the House of Agatha Christie and the legacy built therein,” Jagadeesan said.
“However the other side of the perspective is as the trademark law stands, from a procedural perspective, I understand that the application for the mark was filed as proposed to be used in 2017, so personally I feel maybe the mark was not prosecuted properly as there was sufficient use that could have been shown by the applicant and a claim could have been made to gain its registration due to the registration, which was not done in the instant case. I believe the applicant also had not substantiated the mark as used in association with the class products they were claiming registration under, which could be the reason for the Registrar’s decision. We cannot work on the presumption that the Registrar is aware of the works of Agatha Christie to understand its repute and impact on her readers,” she further explained.
Jagadeesan added that things are changing where trademark is concerned, with protection now being accorded to sound marks, smell marks and design. These marks have obtained trademark registration because of their distinctiveness and ability to be identified with a particular brand or name. Hence, she said that maybe the same could be extended to book titles that are closely associated with their authors such as James Bond novels and short stories as well as Agatha Christie books.
“And Then There Were None” is Christie’s most famous book.
Espie Angelica A. de Leon
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