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A trademark is a “brand name” used for business recognition; it is a brief-expression and logo name, color, or slogan that distinguishes one company from another.
The most valuable asset of a company is its trademark. Trademarks are divided into two types: trademarks and service marks. A trademark must accurately and credibly represent your company’s current goods or services. A trademark or service mark identifies your company as the source of specific products or services (trademark) (service mark). This assists in the establishment of your company’s brand so that customers can easily identify it.
Steps to Register a Trademark
1. The procedure for registering a trademark
Separate provisions exist in Nepal for various types of services and products, as well as products manufactured in a foreign country and services in International Trademarks that have different registration procedures and provide distinct value for a company.
As the name suggests one protects the products and services at a national level and the other does the same at an International level.
As the name implies, one protects products and services on a national level, while the other does so on an international level.
2. Trademark Search in Nepal
It is key that the foreign company determine whether the international trademark it intends to register in Nepal is still available. Prior to filing a trademark application, it is required to conduct a trademark search. It determines the availability of an international trademark as well as the presence of a prior identical or similar mark on the register. It is mandatory to undertake initial research for the presented trademark prior to filing the application in order to avoid any objections or opposition to the mark later on.
3. Trademark Application in Nepal
Sections 17 and 21 (c) of the Patent, Design, and Trademark Act of 1965 (2022) state that trademark applications can be filed in two categories:
- Common Application
- Convention Implementation (Claiming Priority from a convention country)
1. Common Application
Section 17 of the Patent, Design, and Trademark Act, 1965 (2022) states that ordinary trademark applications filed in Nepal are applications without claiming any priority. In Nepal, Foreign Companies are only allowed to register (single class application) only. They are not allowed to file multi-class trademark applications. However, Patent, Design and Trademark Act, 1965 (2022) section 21 (c) also lays down provisions regarding the filing of priority applications, wherein the priority of the mark can be claimed in the said mark filed in the convention country.
2. Convention Application (Claiming Priority from a convention country)
Section 2 (c) of the Patent, Design and Trademark Act of 1965 (2022) provides for the registration of foreign patents, designs, and trademarks as follows:
If an application for registration is filed along with certificates of registration in a foreign country, the Department may register patents, designs, and trade-marks registered in foreign countries without conducting any enquiries, and the Department shall provide the facility of registration pursuant to the Paris Convention for the Protection of Industrial Property 1883 to the registration holder.
Priority trademark applications must be filed in Nepal within six months of the date the trademark application was filed in the convention country. A certified copy of the priority documents must be filed with the Nepali IP office to claim priority in Nepal from a convention application.
4. Paris Convention
As of June 22, 2001, Nepal is a signatory to the Paris Convention for the Protection of Industrial Property. A union for the protection of the industrial property is established as a result of this convention.
A union for the protection of the industrial property is established as a result of this convention. It provides national treatment to applicants who reside in a member country of the union; in other words, National Treatment is a critical concept that is required to achieve the Paris Convention’s primary goal.
The goal is to treat all applications from member countries within a given member country equally and not to differentiate between member country nationals for grant and industry protection purposes. Priority applications may be filed in Nepal within six months of their filing date in the convention countries.
5. Classification of Trademarks in Nepal for Goods and Services
In Nepal, there is a classification of up to 45 for filing a trademark application. The goods are organized into classes 1 through 34, and the services are organized into classes 35 through 45.
6. Documents required for a foreign trademark application
- An application for trademark registration must be filed with the trademark registry in the prescribed form and with the required fees.
- More information about filing a trademark application can be found on the trademark registry website.
- Anyone claiming to be the owner of a trademark may apply for registration of the mark in relation to goods and services. It should go to the Department of Industry.
- Following the filing of the trademark application, the Department of Trademark Registry Kathmandu reviews it for distinctiveness and resemblance to prior marks.
- When a trademark application is approved, an acceptance order is issued, and the trademark is published in the trademark journal. Following examination, if the trademark application is found to be allowable, an acceptance order is issued, and the trademark is published in the trademark journal.
- The trademark registration certificate is issued if no oppositions are filed within 35 days of the date of advertisement in the trademark journal. Trademark registration is a lengthy process that can take 5-6 months if no third party files an opposition.
7. Claim Period/Refusal Notice/Acknowledgement
Following the filing of an application, it is reviewed by the registrar for originality, dishonesty, and inconsistent trademarks. Subject to the provisions of the act, the registrar may accept or reject the application. The registrar in Nepal has the authority to refuse or object to a trademark application.
1. Trademark publication/advertising in Nepal
The application is ordered for advertisement/publication in the trademark journal after the Registrar examines and accepts the response. An application is published in a trademark journal to invite the public to file an opposition to the registration of a mark.
2. Counterclaim / Opposition to a previously published trademark in Nepal
After the trademark is published in the trademark journal, any person may object to its registration by filing a notice of opposition within the prescribed period of 35 days from the date the Trademarks Journal is made available to the public.
3. Updating a trademark
If there is no opposition or if the opposition fails and is decided in favor of the applicant, the application is registered. The mark is then registered for 7 years from the date of application filing, and a registration certificate is issued. The trademark can be renewed for an indefinite period of time by paying renewal fees. In the event that the mark is not renewed, it may be removed from the registry. Each renewal term is for seven years.
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Alpana Bhandari is a founding partner and CEO of Prime Legal Consultants and Research Center. She graduated from American University Washington College of Law. She specializes in corporate/arbitration and family law.