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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 ..... detective firmament, as Sherlock Holmes. For her contribution to literature, Agastha Christie was made a Dame Commander of the British Empire (DBE) in 1971. 3. The most famous work of Agatha Christie and one of the top selling books of all time is "And Then There Were None", originally published on 6 November, 1939 as Ten Little Niggers. It was described, by Agatha Christie herself, as the book she found most difficult to write, and is widely regarded as a classic by enthusiasts of the genre. 4. Agatha Christie Ltd., the appellant before me, is a Company established in 1955 by Agatha 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, cartrid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials; paint brushes; office requisites; desk sets, blotters, book ends; instructional and teaching material; calendars, diaries, personal organisers; greetings cards; posters; postcards; wrapping paper; gift tags." "Class 41: Education; providing of training; entertainment; cultural activities; provision of entertainment services through the media of publications; publishing services (including electronic publishing services); publishing and editing of printed matter and printed publications; on-line publishing of electronic books, audio books, journals, newsletters, digests, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d conducting conferences, conventions, congresses and exhibitions; audiovisual display presentation services for entertainment purposes; production, arranging and conducting of presentations for cultural, entertainment and educational purposes; organisation of events for entertainment and cultural purposes; museum services and provision of museum facilities for presentations and exhibitions; gallery services; courses of instruction in history and literature; exhibition of cine films, video films and video film sound tracks; movie theatre presentations; organisation of entertainment 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur, left the matter to the Court. 9. Ex facie, the impugned order cannot sustain either on facts or in law. The only ground on which the impugned order refuses registration of the appellant's mark is that it is not distinctive. I fail, completely, to understand why "AND THEN THERE WERE NONE" is, by any reckoning, not a distinctive mark, when seen vis-a-vis the categories of services in respect of which its 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the mark in India is liable to be prevented by virtue of any law, in particular the law of passing off protecting an unregistered trade mark used in the course of trade, or by virtue of copyright law [Section 11(3)], (xiv) the mark is the commonly used and accepted name of a single chemical element or a single chemical compound in respect of a chemical substance of preparation [Section 13(a)], or (xv) the mark is declared by the World Health Organisation, as an international non-proprietary name, or is deceptively similar to an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 17. 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 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 whic ..... 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