Article 25 of Constitution of Nepal provides the Right to property as a fundamental rights of the citizens. It further includes intellectual property as a property. Patent Design Trademark Act 2022 (1965) is the governing law when it comes to laws relating to intellectual property in Nepal. To enjoy the rights related to the Intellectual Property, the most important step is the registration. Be it patent, design or trademark. Trademark is defined as, “Any word, name, symbol or any combination of them that represents any goods produced or services provided by any firm, company or individual.” Trademark is an important component while running a company/business as it helps to differentiate it from the rest of the trademarks. Trademark can simply be understood as the mark that is used by a business/company while trading. Hence with the trademark the goodwill of the company/business is automatically linked. Trademark does not deal with the quality of the product or services but it directly affects the choice of the customer based on the quality of goods and services that has been provided using the trademark.
Chapter 4 i.e. Section 16-19 of Patent Design Trademark Act (PDTA) covers the provisions related to Trademark, it includes the process of trademark registration as stated below:
Step 1: Anyone interested to register a trademark is supposed to file an application to the department as per schedule 1(c) of the act,
Step 2: The department shall make investigation and inquiry based on the application made,
Step 3: Once the investigation is complete, the trademark will be published in the Department’s Intellectual Property Bulletin allowing for third-party objections,
Step 4: If anyone intends to object such published trademark then an objection must be lodged within 90 days of the public notice,
Step 5: If no objections are lodged, a decision to issue a certificate of registration is made. The applicants are to pay the registration fee as per schedule 3(3)b of the department,
Step 6: Investigations will follow in cases where an objection to the trademark registration is lodged. If the investigation supports issuance of the trademark, it will be registered. If the investigation does not support issuance the decision can be appealed through the appellate court.
The department may not register a trademark in the following situations:
- If it hurts the prestige of any individual or institution,
- If it if it adversely undermines the national interest or the reputation of the trademark of any other person,
- If the department feels that such trademark is against the morality or the public conduct,
- If it has already been registered in the name of another person.
However the applicants are given a chance to fair hearing before cancelling the registration. Section 18B of the act prohibits the use of any trademark without it being registered at the department, hence the registration of trademark is the most important step for the protection of a trademark. A trademark remains valid for 7 years from the date of registration. The trademark can be renewed for any number of times for a period of 7 years at a time.
If anybody violates right of registered trademark owner and uses the trademark which is cancelled by the department he may be punished with a fine not exceeding one hundred thousand rupees by order of the Department and all the goods related with such offence shall be confiscated.