It is that type of artwork that could distinguish the goods or services of one undertaking from those of goods and services of another undertaking. In simple terms the artwork which have the potential to eventually turn into a trademark or such mark which has a potential to become a brand identity of a business and could be protected as a trademark are treated as artistic work capable of being used in relation to goods and services for copyright registration under the category of artistic work. This could be brand, logo, label, packaging, design cartoons, and figurative drawings, etc which have the potential to be applied on goods or services.
Where artwork is capable of being used on goods and services the applicant needs to submit a search certificate (TM-C) issued by the Trademark Registry as provided under Section 45 proviso of the Copyright Act at the time of making an application for registration of such artwork with the copyright office. Cartoons and animation characters can be used for the brand promotion can be applied on goods or can be used as mascots in events or can be applied in an animated game or could be sold for monetary gains, hence for any such artistic work submission of a search certificate is mandatory at the time of seeking copyright registration for such cartoon and animation characters.
It is important to mention here that an artistic work registered under the copyright act and is also capable of being registered under the Design Act 2000 but which has not been so registered will cease to enjoy the copyright protection as soon as any article to which the design has been applied has been reproduced more than 50 times by an industrial process either by the owner of the copyright or with his license by any other person. Further, the copyright shall not subsist in the artistic work capable of being used on goods or services which is registered under the design act 2000.
The artwork which has never been used on goods or services or neither capable of being used on goods and services doesn’t require any search certificate to be submitted at the time of seeking registration with the copyright office. Examples of such artwork could be paintings, sculptures, maps, charts and lithographs, and other 3-dimensional works, etc. However, if a painting or drawing or a photograph or a sketch which is not intended to be used on goods or services do not require any search certificate from the Trademark Registry for its registration as an artwork under the Copyright Act.
There are certain types of works which have both the artistic and literary element in them and the applicant needs to apply for registration of both types of work separately to enjoy protection in the whole work. Meaning thereby, for the artistic element the applicant needs to make an application under the artistic category, whereas, for the literary element the application has to be filed under the literary work. Examples are board games, card games, websites, comic books, Brochures, Pamphlets, posters, catalogs, etc.
The search certificate is required for the registration of the images appearing on the website, board games card games as they may be used along with any brand whose label or logo appears on the work for monetary gains. However, where such works are used only for educational purposes or social work without any commercial exploitation of the same then the search certificate may not be required at the time of registration provided the applicant submits an affidavit for the same.