The Patent Design and TradeMark Act, 2022 (1965)

A patent is a document, issued by a government authority to the applicant, which describes an invention and creates a legal situation in which the patented invention can normally only be exploited with the authorization of its owner. Interest parties or persons may apply for trademark registration in Nepal. According to the Patent Design and Trademark Act, A patent is granted for an invention only when novelty, inventive step, and industrial applicability are maintained.

In exchange for a patent, applicants must make their inventions public so that others can improve and build on them. A patent grants the exclusive right to make, sell, offer for sale, use, or import the patented invention.

Patent, Design, and Trademark Act in English

We are well aware that intellectual property is primarily concerned with the concept, creation, and invention of ideas. The fundamental concept of intellectual property is to reward a creator or inventor for a limited time for his or her contribution to the nation and society. After that time period, the right to those intellectual properties is transferred to the public domain; in other words, it becomes public property. Trademarks are an important category of intellectual property.

Patents and copyrights are based on the creative efforts of the mind of man. A trademark is merely a convenient way of identifying goods and a service mark is a convenient way of identifying services. The right to use the mark is not granted by the government and registration of a mark does not itself create any exclusive rights.

Rights in a mark are acquired by use and use must continue if the rights are to continue. Registration is simply the recognition by the government of the right of the owner to use the mark in commerce to distinguish his goods or services. The rights in relation to a registered mark, unlike a patent or a copyright, may be forfeited or lost during the term for which the registration was granted.

Trademarks can be seen as serving two main purposes: first, to protect business reputation and goodwill and, secondly, to protect consumers from deception, that is to prevent the buying public from purchasing inferior goods or services in the mistaken belief that they originate from or are provided by another trader.

As a form of consumer protection, this area of law has been an effective weapon against counterfeit and inferior goods, considerably strengthened by the introduction of draconian criminal penalties for the fraudulent application of trademarks. However, as far as the control of the use of marks in the civil court is concerned, the action lies with the proprietor of the mark, and consumers are protected indirectly through the self-interest of those with property rights in trademarks.

The norms of trademark protection prescribed in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) are internationally recognized as standard. Nepal already has basic provisions with respect to the protection of trademark rights. We have come to know by comparison with international standards, these existing laws are not enough for the protection of trademark in the present situation. The increase of global trade and frequent violations of trademarks have created a complex situation.

Although, there are instances of protection of trademark provided by the authority punishing the infringer and prohibiting the imitation of another’s trademark, the Patent, Design, and Trademark Act, 1965, is not able to provide full protection to trademarks in Nepal.

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