Intellectual Property Law in Nepal

Intellectual property Law in Nepal aim to protect the rights of creators and innovators. The primary legislation includes the Patent, Design, and Trademark Act, 1965, and the Copyright Act, 2002. Nepal is also a member of international treaties like the Paris Convention and the Berne Convention.

Types of Intellectual Property Protected in Nepal

Nepal provides protection for several types of intellectual property rights, including:

Trademarks: Distinctive signs, words, symbols or designs used to identify goods or services of a particular source. Trademarks help consumers distinguish between products and prevent unfair competition.

Patents: New inventions that are non-obvious and have industrial applicability. Patents provide inventors with exclusive rights for a limited time period in exchange for public disclosure of the invention.

Copyrights: Original works of authorship like literary, dramatic, musical and artistic works. Copyright gives creators exclusive rights to reproduce, distribute, perform and display their works.

Industrial Designs: New and original designs applied to products. Design rights protect the visual appearance of products rather than their functional features.

Trade Secrets: Confidential business information that provides a competitive advantage. While not registered, trade secrets are protected against misappropriation under unfair competition laws.

Geographical Indications: Signs used on products that have a specific geographical origin and possess qualities or reputation due to that origin. GIs help identify authentic regional products.

Key Intellectual Property Law in Nepal

The main laws governing intellectual property rights in Nepal are:

Patent, Design and Trademark Act, 1965: Provides for the registration and protection of patents, industrial designs and trademarks. Sets out registration procedures, terms of protection, and enforcement mechanisms.

Copyright Act, 2002: Protects original literary, artistic, musical and dramatic works. Covers economic and moral rights of creators and sets out infringement remedies.

Competition Promotion and Market Protection Act, 2007: Contains provisions to protect trade secrets and prevent unfair competition.

These primary IP statutes are supplemented by various rules and regulations that provide more detailed implementation guidelines. The laws aim to incentivize innovation while balancing public access to knowledge.

Nepal’s Participation in International IP Treaties

Nepal has acceded to several important international IP agreements:

Paris Convention for the Protection of Industrial Property (2001) Berne Convention for the Protection of Literary and Artistic Works (2006) World Trade Organization – TRIPS Agreement (2004) World Intellectual Property Organization Convention (1997)

By joining these treaties, Nepal has harmonized many aspects of its IP laws with international standards. This provides greater certainty for both domestic and foreign IP owners operating in Nepal.

Duration of Trademark Protection

Trademark registration in Nepal provides protection for an initial period of 7 years from the date of filing. The registration can be renewed indefinitely for further periods of 7 years each by paying the prescribed renewal fees.

To maintain protection, the trademark must be genuinely used in Nepal. Non-use for a continuous period of 5 years can make the mark vulnerable to cancellation. Owners should keep records of use to defend against non-use claims.

The potentially indefinite duration of trademark rights, subject to renewal and use, allows businesses to build long-term brand value and consumer recognition in the Nepali market.

Patent Protection Term

Patents granted in Nepal are valid for a period of 7 years from the date of filing the application. The term can be renewed twice for additional 7-year periods, providing a maximum protection of 21 years.

To renew a patent, the owner must file a renewal application and pay the prescribed fees before expiry of the current term. Failure to renew will result in the patent lapsing into the public domain.

The relatively short initial term, compared to the 20-year term in many countries, aims to balance innovation incentives with earlier public access to inventions. Owners must carefully assess commercial viability before renewing.

Copyright Duration

Under Nepal’s Copyright Act, copyright protection generally lasts for the life of the author plus 50 years after their death. For works of joint authorship, the term is 50 years from the death of the last surviving author.

For works where a company or institution is the rights holder, copyright lasts for 50 years from the date of publication. Photographic works are protected for 25 years from creation.

These terms align with the minimum standards set by international treaties. They aim to provide sufficient economic incentives for creators while ensuring works eventually enter the public domain.

Mandatory Registration Requirements

Trademarks and Patents

Registration is mandatory to obtain protection for trademarks and patents in Nepal. Rights in these IP assets only arise upon grant of registration by the Department of Industry. Use of an unregistered trademark or practicing an unpatented invention does not confer enforceable rights.

Copyrights

Copyright protection is automatic upon creation of an original work. Registration is voluntary but recommended. Registration provides prima facie evidence of ownership and can be useful in enforcement actions.

Industrial Designs

Design rights also require registration for protection. Unregistered designs may have limited protection under copyright or unfair competition laws, but registration provides stronger exclusive rights.

Trade Secrets

Trade secrets do not require registration. Protection arises from the nature of the information and the reasonable efforts taken to keep it secret. However, contractual and practical safeguards are crucial.

Read More: 10. 1. Copyright Law in Nepal 2. Patent Registration in Nepal 3. Patent, Design and Trademark Act, 1965

Government Body Overseeing IP Administration

The Department of Industry (DOI) under the Ministry of Industry, Commerce and Supplies is the primary government agency responsible for intellectual property administration in Nepal. Its key functions include:

• Examining and registering patents, designs and trademarks
• Maintaining IP registers and databases
• Hearing oppositions and cancellation actions
• Promoting IP awareness
• Recommending changes to IP laws and policies

For copyrights, the Nepal Copyright Registrar’s Office handles voluntary registration and enforcement matters. Overall policy direction comes from the Ministry.

Foreign IP Registration in Nepal

Foreign individuals and entities can register intellectual property rights in Nepal, subject to certain conditions:

1. Foreign applicants must file through a registered Nepali agent or attorney.
2. Applications and supporting documents in foreign languages must be accompanied by Nepali translations.
3. For patents and designs, the application must be based on a prior foreign registration or application.
4. Trademark applications can be filed directly but use or intent to use in Nepal may need to be demonstrated.
5. Copyright registration for foreign works follows similar procedures as domestic works.

These requirements aim to facilitate examination while ensuring foreign rights are properly represented locally. The involvement of local agents also helps in subsequent maintenance and enforcement.

Protection of Trade Secrets

While Nepal does not have a specific trade secrets law, confidential business information is protected under broader unfair competition provisions. Key aspects include:

• Information must have commercial value due to its secrecy
• Reasonable measures must be taken to keep it secret
• Misappropriation through improper means is prohibited

Protection arises automatically if these criteria are met. No registration is required or possible. Enforcement is primarily through civil litigation, with potential criminal sanctions in egregious cases.

Companies should implement robust internal policies and contractual safeguards to maintain trade secret protection. Once information becomes public, protection is lost.

IP Appeals Process

Decisions of the Department of Industry regarding the grant, refusal or cancellation of IP rights can be appealed. The process generally involves:

1. Filing an appeal with the Ministry of Industry, Commerce and Supplies within 35 days of the DOI decision. The appeal should clearly state the grounds for challenging the decision.
2. The Ministry will review the case file and may hear oral arguments from both parties. Additional evidence is generally not admissible at this stage.
3. The Ministry can uphold, modify or reverse the DOI’s decision. The review focuses on proper application of law and procedures.
4. If still unsatisfied, a further appeal to the Supreme Court may be possible on questions of law within 35 days of the Ministry’s decision.
5. The Supreme Court’s judgment on interpretation of IP statutes is final and binding on lower authorities.

This multi-tiered appeal process aims to ensure fair and consistent application of IP laws while providing avenues for correcting potential errors.

Remedies for IP Infringement

Nepal’s IP laws provide for both civil and criminal remedies against infringement:

Civil Remedies

• Permanent and interim injunctions to stop infringing activities
• Damages or account of profits to compensate the rights holder
• Delivery up and destruction of infringing goods
• Publication of judgments to restore reputation

Criminal Penalties

• Fines ranging from NPR 10,000 to 100,000 for trademark and copyright infringement
• Imprisonment up to 6 months in some cases
• Seizure and forfeiture of counterfeit goods

Administrative Actions

• Customs seizures of imported counterfeit goods
• Cancellation of business licenses of persistent infringers

The choice of remedy depends on the nature and scale of infringement. Rights holders often combine different enforcement routes for maximum impact. Criminal prosecution is typically reserved for large-scale or repeat offenders.

In conclusion, while Nepal’s IP protection system is still evolving, it provides a reasonable framework for securing and enforcing intellectual property rights. Ongoing legislative reforms aim to further strengthen the regime and align it with international best practices.

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