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9 May 2023FeaturesTrademarksMichael Gardner

'Wagatha Christie': why Rebekah Vardy's TM could attract a courtroom drama of its own

It's now almost a year since the real-life courtroom drama of the so-called ‘Wagatha Christie’ libel case was resolved in July 2022 with a thumping victory for  Colleen Rooney, the wife of former England soccer star  Wayne Rooney.

Her vanquished opponent, fellow ‘wag’  Rebekah Vardy who brought the claim, was left with her own reputation in tatters and a huge legal bill to pay.

But the saga took a new twist in April 2023 with the news that Vardy, via a company called  London Entertainment, had quietly applied to register trademarks in the UK to protect the popular catchphrase ‘Wagatha Christie’ so as to enable her to exploit the term commercially.

There is nothing in principle to stop anyone from registering as a trademark a catchphrase or nickname for particular goods or services. The same legal rules apply to these sorts of marks as they do to any other potential trademark.

The mark must be sufficiently distinctive so as to be capable of distinguishing the goods or services from one undertaking from those of another. It must be capable of being represented with sufficient clarity and precision on the trademarks register and must not fall foul of other rules (eg it must not be descriptive of the characteristics of the goods or services to which it relates).

As a trademark, ‘Wagatha Christie’ does not appear to fall foul of any of those issues. Hence the  UK Intellectual Property Office allowed the application to proceed to registration.

But that does not mean the mark is free of potential problems. Far from it.

The trademark applications

Prior to the revelation that the phrase had been trademarked, the High Court case had already been turned into a TV drama, documentary and a stage play. The public appetite to learn more about the whole affair seemed insatiable.

So it was perhaps not surprising that someone should have sought to exploit the ‘Wagatha Christie’ name for commercial advantage. It would seem that Vardy is that person.

On August 22, 2022, less than a month after judgment was given in the libel action, London Entertainment filed two separate applications to register the mark ‘Wagatha Christie’.

One application was to protect the mark in respect of goods in classes 24 and 25 for linen and clothing, respectively.

The other, however, was filed in relation to a very large range of goods and services. These included sunglasses, cleaning preparations, cosmetics, alcoholic cocktails, retail services, broadcasting services, dolls’ clothes and many more ranging from food mixers to electrically heated mugs (this is but a tiny extract from the full list).

On the face of it, having now obtained the registration for this huge range of goods and services, Vardy had put herself in a strong position to enforce those rights against others and exploit them for herself.

But just as she found it tough going in the High Court, things are unlikely to be that straightforward for Vardy in the trademark world either. Indeed, there are already signs that she is not going to have things her own way.

More legal trouble for Vardy?

One of the two applications made for UK trademarks filed by London Entertainment is already being opposed by a textile company called Welspun UK. It owns a textile brand called  Christy. If its opposition succeeds, it may squash any plans Vardy has to establish a clothing brand under the ‘Wagatha Christie’ name, at least for clothing. That would surely have been one of the prime uses for the mark.

But the potential problems for Vardy's trademarks do not end there.

The term ‘Wagatha Christie’ is of course a play on the well-known term ‘wag’ (used to describe the wives or girlfriends of famous footballers), conjoined with the name of the novelist Agatha Christie, famous for her ‘whodunnit’ stories.

The mark ‘Wagatha Christie’ would have no meaning without the enduring fame of Agatha Christie. There is a company called  Agatha Christie Ltd registered in England, which owns scores of trademarks protecting the Agatha Christie name and the names of famous characters from her books, such as Poirot the detective.

Will that company object to the mark and seek to cancel it? From a trademark lawyers' perspective, it would not be difficult to see possible attack lines. These could be on the basis that the mark ‘Wagatha Christie’ is too similar to Agatha Christie or that it takes unfair advantage of or is detrimental to the distinctive character of that mark.

An attack on the validity of the registration can be made, sometimes years after the mark has achieved registered status.

Aside from an attack by anyone owning earlier rights to a similar trademark, there is likely to be a longer term difficulty for Vardy which will become increasingly acute once the registration approaches its five-year anniversary.

Under UK trademark law, as with its European counterpart, once a trademark has been registered for five years, it becomes potentially vulnerable to revocation for non-use if it has not been put to genuine use in relation to the goods or services for which it was registered.

In cases where, as here, a mark is registered in relation to such a long list of goods and services, it seems highly unlikely that Vardy would be able to commercialise the mark for more than a minority of them over the next five years. So even if she does proceed to use some of them, it is likely that the scope of what she can protect will have been drastically reduced in the longer term.

That said, until the five-year period is up, she can still enjoy the benefits of having the trademark and can potentially stop anyone from using it in relation to goods or services identical or similar to those for which it is registered. But even that benefit has its limits.

For example, it is perfectly lawful for a trader to make honest descriptive use of another's trademark. So a company publishing a book about the Vardy v Rooney case with the title The Wagatha Christie Trial would not necessarily infringe the mark.

The verdict?

Like with most good whodunnit stories, it is difficult to know how the decision to apply for ‘Wagatha Christie’ trademarks will end. Will Rebekah Vardy successfully exploit them and recoup some of the costs she suffered from the libel case? Or, rather than banking royalty cheques from use of her trademark, will their registration and application lead her into further costly legal proceedings?

We will just have to wait and see how this particular story ends.

Michael Gardner is a partner and head of the IP team at Wedlake Bell in London. He can be contacted at:  mgardner@wedlakebell.com

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