Agatha Christie, The Grandson, And The Trademark Ask

And Then There Were None is among Agatha Christie's top read murder mystery novels.

A television series and many movie adaptations later, Agatha Christie's best-selling murder mystery titled "And Then There Were None" is set to be a registered trademark in India.

The Delhi High Court last week set aside an order which refused to register the novel title as a registered mark. The trademark registry had refused to grant registration to Agatha Christie Ltd., a company chaired by Christie's grandson, stating that the mark was not "distinctive" in nature.

But the registry's order didn't find favour with the court. Concurring with the company, Justice C Hari Shankar held that the trademark registrar's order is unsustainable, both on facts and law.

The court noted that there was no finding in the registrar's order that the mark "And Then There Were None" is incapable of being represented graphically. Or, that the company's mark cannot be distinguished from its competitors.

The court also noted that the registrar had failed to provide reasons for declining to register the mark.

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....

Justice C Hari Shankar, Delhi High Court

These reasons prompted the court to set aside the registrar's order and remit the matter back to the registry. The court also added that if the company's new trademark application is proper as per law, then the mark "And Then There Were None" should be registered.

The law does not breakdown a trademark into various parts, Shailendra Bhandare, partner at Khaitan and Co., told BloombergQuint. People might look at different words in a mark and say it's generic. But under the trademark law, the mark has to be considered as a whole.

The question is, whether the combination of these words when taken together as a mark, is distinctive or not.

Shailendra Bhandare, Partner, Khaitan and Co

Under the Trademarks Act, a distinctive mark is one where consumers are able to “identify and differentiate” goods or services of one business entity from its competitors. But, the law also stipulates that the desired mark should not contain words describing the goods or services.

So, for instance, a company manufacturing and selling edible oil based products cannot trademark terms such as "low absorb" or "fat-free" since these are descriptive of the products. In a plethora of judgments, courts have ruled that descriptive words cannot be trademarked by one business.

Trademark registries follow a "notorious" trend of not providing reasons while denying to register trademarks, Bhandare added. What happens is that, most of the time, people don't know why their desired marks were rejected, he said. "The high court's order is important since it directs the registry office to give reasons for rejecting the trademark application."

This order will pave way for many novelists, creative artists to apply their marks for trademark registration, Suraj Kumar, founding partner at SKS & Partners, told BloombergQuint.

When marks are constituted of generic words, sometimes, the registry is not too keen on accepting the registration applications. This order specifically mentions how a mark should be read a whole and not as independent words, he added.