An Overview of Trademark Clearance Certification for Copyrights

In India, when we discuss about the Copyright Protection Laws, they are quite unspecified. There are many vacuums in the Copyright Protection Act, 1950. Initially, they say that Copyright Registration is not compulsory, but again, they say that if you require any legal protection in case of Infringement, then Registration Certificate will be solid proof. There is also another provision in the Copyright Act, which is unusual and is the only provision that creates a bond between the Copyright and Trademark. Section 45 of the Copyright Protection Act defines that in case of any artistic works, to obtain a Copyright registration Certificate, the actual owner of the work has to submit a Trademark Clearance Certificate along with other documents.

But, before we get into the process of procuring a Trademark Clearance Certificate, let’s understand our basic rights on “Artistic Work”. Artistic works are designed under the Section 2 (C) of the Copyright Act, which gives a list of copyrightable works such as:

• Sculpture.
• Drawings- diagram, maps, chart or plan.
• Engraved art.
• Photography.
• Artistic Craftsmanship.
• Architecture work.

The Artistic Works consists of both 2-D and 3-D work. However, if a specific work is to for any commercial purpose concerning the goods or services, then in these cases, the Act mandates to procure Trademark Clearance Certificate or Search Certificate from the Trademark Registration Office, and this is under Section 45 of the Copyright Act^[1].

What is a Trademark Clearance Certificate or Search Certificate?

Trademark Clearance Certificate is the search certificate which is issued by the Trademark Registrar telling that the concerned artistic work is not identical or confusingly similar to the registered Trademarks under the Act; it also checks that no such applications are for the specific artistic works by anyone else.

Why is there such a necessity for artistic work and not for other copyrightable works?

The answer to this question is very simple; Entrepreneurs’ regularly struggle to encourage their brands and integrate their brand logos in all of their works. The logo is considered a classic instance of artistic work. So in these cases, a specific logo can get protection under to Intellectual Property Right regimes – Trademark and Copyright.

The main goal of a Trademark is to ensure that there is no confusion arises in the customer’s mind of the two goods and will safeguard the logo only in cases or freeway commerce based on the categories of goods and services; however, Copyrights will safeguard the artistic design logo from being duplicated or used without approval nevertheless of whether it’s being used to brand goods and services. Hence, Copyrights will offer extensive protections to the artistic work that delivers such works that are unique and not obtainable in the public domain.

Now, coming back to the above question-why only artistic work? – Since the rest of the Copyrightable works don’t have any association with Trademarks. Dramatic or literary, or cinematography work don’t have a factor of Trademark necessities. Usually, designs and logos are for brand recognitions for representing businesses that safeguard as Trademarks. As they are indigenous artworks that have a factor of creativity, they are also safeguarded as Copyrights. Only some types of creative works are capable of Copyright Protection, artistic works (consisting of brand designs or logos) being one such kind. If a brand logo has a factor of creativity and is original, it will attract Copyright Protection in adding up to Trademark Protection.

What is the Process of Getting a Trademark Clearance Certificate?

To get a Trademark Clearance Certificate, an application for TM-C or Search Certificate has filed with the following documents:

The following particulars should be filled:

• Address and name of the applicant;
• Email address & phone number of the applicant;
• Applicant’s nature- individual, the company LLP, partnership, or HUF;
• If the application files by the agent:

1. Name and address of the agent;
2. Phone number and email id of the agent;
3. Power of Attorney or Authorization;
4. Agent’s nature: whether he is a Trademark advocate, constituted attorney, or agent.

• Details of the artistic work- a copy of logo or image in 3 copies (33cm*20cm);
• Person details submitting the document.

Mode of Filing the Application

E-filing and manual filings are the two ways of filing the Trademark Clearance Certificate:

• In case you choose ‘manual filing’, you have to personally hand over your application to the Trademark Registrar Office located in the big cities such as Delhi, Kolkata, Mumbai, Chennai, and Ahmedabad. Then you have to wait for 15 to 20 days at least to receive the acknowledgement receipt.
• However, in the case of an e-filing system, you will get your acknowledgement receipt quickly on the official government website. After getting the acknowledgement receipt, you are entitled to use your TM symbol beside your brand logo or name.

Fee Structure

According to the first schedule of the Trademark Rules, 2017:

Form- TM C to be filed with the given fees	Manual Filing	E-Filing
Request for Search and issuance of a Certificate under Rule 22(1)	Rs. 10,000/-	Rs. 9,000/-
Request for a search and issue of Certificate under Rule 22 (3)	Not allowed	Rs. 30,000/-

After filing the Form along with the relevant documents and fees is paid, the Trademark Registrar will conduct the search and within thirty days give the outcomes of the search and issuance of the certificate.

Suppose there is no deceptive similar or identical. In that case, the Trademark Registrar will issue the Trademark Clearance Certificate, Delivered, the Trademark Registrar may call for a statement for necessities from the applicant, and if the necessities are not obeyed within two months from calling statement date, the request on Form TM-C shall be treated as abandoned.

Cancellation of Trademark Clearance Certificate or Search Certificate

The Trademark Registrar may cancel the Search Certificate that is under the Sub-Rule (1) after giving notice. Moreover, telling the grounds on which the Trademark Registrar suggested to cancel the Trademark Clearance Certificate or Search Certificate and after delivering reasonable opportunity.

Conclusion

Hence, as we said earlier while applying for the Copyright Registration, it is compulsory to get Trademark Clearance Certificate as per Section 15 of the Act, and once that is procured, the process of getting Copyright for artistic work can be commenced. But, the Search Certificate or TM-C shall not require, when such works are non-commercial, for simply educational purposes.

Read our article:How to File a Complaint Against Trademark Violation in India?