Agatha Christie’s Estate: Rightfully Protective or Overly Zealous?
I woke this morning, to see a report in the Daily Telegraph, that the estate of the late author Agatha Christie (the “Estate”) has sought to enforce its rights in its 2013 registered trade mark: QUEEN OF CRIME.
A cease-and-desist letter has apparently been issued, relating to a poster appearing at Edinburgh Waverly Station referring to Val McDermid, author of more than 17 million books, as “the Queen of Crime”. Until now, that was a moniker commonly used to refer solely to the late Agatha Christie.
Can a person, company or estate really own such a term and stop others from using it without permission? The short answer is yes, but as with trade mark rights and their enforcement, there are nuances.
The Trade Mark and Infringement
In the UK, each registered trade mark is registered against a specific class, or classes, of goods or services. For example, Agatha Christie Limited (the Estate), owns the QUEEN OF CRIME trade mark (the “Mark”), in respect of (amongst a myriad of items) games, stationery, education and books.
The use made of the Queen of Crime moniker, on the poster in question, could be said to infringe the Mark. For infringement, it’s necessary to consider whether there has been the use of the same or similar mark, with the same or similar goods/services against which the trade mark is registered, such that confusion arises. Further, outside of the same or similar goods/services, an infringement may still arise where there has been an “unfair use” of the registered trade mark (use of the mark to ride on the coattails of the reputation and goodwill of the registered mark).
Aside from the above, a nuance to consider is how to approach enforcement and whether the enforcement of the mark could draw adverse publicity for the mark owner, such that it is a negative action, rather than being positive and of real benefit. I am not suggesting in this instance that the Estate should not assert their rights in the Mark, and I have no criticism of any trade mark owner asserting their rights, however taking the step to send a cease and desist can have numerous consequences (sometimes overlooked). It is too early to determine how the Estate’s assertion of its rights will be viewed in this case; it may be positive, or negative. There certainly can be a positive advantage for the Estate in being seen to publicly enforce its rights, to dissuade others from unauthorised usage. However, in the Telegraph article, it was reported that Ms McDermid had recently worked with the Estate on a new book about Miss Marple, a character of Christie’s, so taking legal action against her publisher could present a confusing public message.
The Telegraph article also referred to ownership of Copyright in the Mark; which could in my view, be a more difficult claim to advance. Copyright arises automatically when a sufficient level of skill, labour and judgment is present when creating an original work (a book is written, for example). Where uncertainty can arise is where the work is very short: for example, in the case of small extracts or simple phrases. Also, ownership of Copyright rests first with the author of the Copyright work (the phrase in this case), and so one would have to prove that Ms. Christie created the description of herself, as an original work, and the rights in it passed to the Estate. Each case turns on its own facts, so that is an argument for the Estate to advance, but this may be less than straightforward.
So, should you enforce your rights in each, and every case or hold back? There is no simple: yes/no answer when it comes to trade mark (or copyright) enforcement. One should not be too scared by potential negative publicity such that it renders the trade mark useless (if it is never enforced), however one should also pick one’s battles carefully (even when there is a considerable legal budget behind a fight).
Approaching trade marks, and any other intellectual property rights, should be a strategic exercise, with advice from legal experts. If you’d like to discuss the registration and enforcement of trade marks, please contact me at [email protected].