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TMI Blog2022 (2) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... rder, that the name AND THEN THERE WERE NONE is not capable of being represented graphically or is incapable of distinguishing the services being provided, or intended to be provided, by the appellant, from those provided or intended to be provided by others. There is no obligation, in law, requiring, mandatorily, the name or other insignia, whereunder goods or services are provided, to be registered under the Trade Marks Act, 1999. Registration of a trademark, however, permits transparency in trade and is also in the interests of the consuming public who would, then be able to identify and distinguish goods and services being provided by one entity from those provided by another. As such, if the trademark is not one, the registration of which is inhibited by any of the provisions of the Trade Marks Act, its registration must be allowed - Essentially, if the mark is distinctive, and is not identical or confusingly or deceptively similar to any earlier mark which is registered or in use from a prior date in respect of similar goods or services, or which results in the passing off, by the applicant, of its goods or services as those of another, registration of the mark is a matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tha Christie herself. It is presently chaired and managed by Mr. James Prichard, her great grandson. 5. The appellant, on 5 December, 2017, filed an application for registration of the trademark AND THEN THERE WERE NONE , under Classes 9, 16 and 41 of the Schedule to the Trademarks Rules, 2017, which read thus: Class 9: Pre-recorded magnetic, digital and optical recording media and data carriers, including audio and video cassettes, digital audio tapes, video tapes, vinyl records, compact discs (CDs), audio digital discs, magnetic discs, optical discs, floppy discs, holographic discs, DVDs, cartridges for computer and video games, magnetic or digital cards, cards bearing electronically recorded data, smart cards, flash memory cards, portable flash memory devices, USB flash drives; cinematographic films; television films; slide films; slide film mounts; photographic films; computer software; computer application software for mobile devices; downloadable software via the internet and wireless devices; downloadable software in the nature of a mobile application; video and computer games in the form of computer programs recorded on data carriers or downloaded via the internet; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts, reports, newspapers and magazines (non-downloadable); music publishing and music recording services; provision of entertainment services; entertainment by means of theatre productions, music performances, roadshows, radio, television, film and internet; entertainment services in the form of television and radio shows, programs, films and series, theater and stage productions, cabaret, live musical performances, concert performances, sound recordings, cinema performances, films and multimedia entertainment production; entertainment services in the form of electronic, computer and video games provided by means of the internet and other remote communications device; planning, organizing, directing, production, performance and presentation of theatre performances and shows, stage performances and shows, plays, musical performances and shows, dramas, live comedy shows and live performances, cinematographic films, video films, animated films and cartoons; production of pre-recorded video, television and cinema films; video-tape film production, television programs, television series, live television programs, radio programs, radio broadcasts, musical programs, musical shows, live mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and cultural events; arranging of festivals for cultural, educational and entertainment purposes; audio, film, video and television recording and production services; production of sound and image recordings on sound and image carriers; production of entertainment in the form of video and audio recordings; dissemination of entertainment material; rental of audio books and electronic books; rental and hire of pre-recorded media, DVDs, video and audio cassettes and tapes; rental of cinematographic films, motion picture films and television programs; rental of computer game programs; film and television program distribution (other than transportation); providing educational and entertainment services relating to uploading, exchanging and sharing photos and videos via a website; orchestra services. 6. The appeal avers that, on the date when the application was filed, no mark even remotely similar to AND THEN THERE WERE NONE was in use, in relation to the goods and services in respect of which registration was sought by the appellant, or, for that matter, in respect of any other goods or services. 7. A show cause notice, proposing rejection of the mark was served on the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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. 10. The Trade Marks Act, 1999, confers, as a matter of right, the right to register a trademark which does not suffer from any of the infirmities which the Act contemplates. 11. The grounds on which registration of a mark used, or proposed to be used, as a trademark, may be refused, are contained in Sections 9, 11 and 13 of the Act. They permit refusal of registration if (i) the mark is devoid of any distinctive character, meaning that it is not capable of distinguishing the goods or services of one person from those of another [Section 9(1)(a)], (ii) the mark consists exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service [Section 9(1)(b)], (iii) the mark consists ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... international non-proprietary name granted by the WHO. 12. The circumstances in which registration of a mark can be refused, being specifically statutorily delineated in the Trade Marks Act, have to be regarded as exhaustive. Absent any of these circumstances, therefore, a request for registration of a trademark cannot be refused. 13. Trade mark and mark , are defined in Clauses (zb) and (m) of Section 2(1) of the Trademarks Act, 1999, thus: 2. Definitions and interpretation- (1) In this Act, unless the context otherwise requires, ***** (m) mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof; ***** (zb) trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours; and (i) in relation to Chapter XII (other than section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered or in use from a prior date in respect of similar goods or services, or which results in the passing off, by the applicant, of its goods or services as those of another, registration of the mark is a matter of right. 18. The impugned order denies, without due justification, to the appellant, this right. 19. 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 good 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. 20. Absent any other infirmities or shortcomings, the appellant's mark would be entitled to registration as sought in respect of the services under Classes 9, 16 and 41. 21. As such, the impugned order is quashed and set aside. The matter is remitted to the office of the Registrar of Trade Marks with the direction that, if the application of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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