Legal Environment for Business in Nepal
15 January 2017
Saroj Shrestha 1
Movable Property: Shares, Gold Silver, Money,
Car, Watch
Immovable Property: Land, Building, Fixed with
land i.e. Building, Machinery Equipment
Intellectual
Property: Property that arises out of
human intelligence or mental labour i.e. Patent,
Design, Trade Mark, Copy Right
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Intellectual Property is property that arises out of human
intelligence or mental labour.
The two major categories of IP are i. Industrial ii. Literary.
In the category of Industrial Property
Trade Marks
Patents
Designs
Trade Secrets
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Literary property is protected by means such
as copyright and neighboring rights including
performer’s rights.
In the relatively more recent past, many new
forms of IP have come into existence. They
include plant varieties, digital literary and
other property, domain names etc. These are
also protected by suitable mechanisms such
as plant breeder’s rights, digital copy right
etc.
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Intangible
Rights guaranteed by State for particular
time
Can not store for particular place;
Territorial Jurisdiction;
Exclusive Rights;
Bundle of Rights There can be various IP
on same product i.e. Coca Cola
Multiple users.
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A Trade Mark is a visual symbol in the form of a
word, a device or a label applied to articles of
commerce with a view to indicate to the purchasing
public that they are the goods manufactured or
otherwise dealt in by a particular person as
distinguished from similar goods manufactured or
dealt in by other persons.
"Trademark" means the mark (Nissa) which is used
to identify the manufacture (product) or owner of
the goods or commodity. (Patent, Design and
Trade Marks Act, 2022)
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A person who sells his goods under a particular trade
mark acquires a sort of limited exclusive right to the
use of the mark in relation to those goods. Such a
right acquired by use is recognized as a form of
property in the trade mark, protected under the law.
The law of TM is based mainly on two concepts:
distinctiveness and deceptive similarity.
Feature of Trademarks
Specificity Principle, Origin Indicating Function
& Distinguishing Function
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• Patent, Design and Trademarks Act, 1965
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• Copyright Act, 2002
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• Copyright Rules, 2004
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"Patent" means the absolute right
(Sarbadhikar) over a newly invented goods or
commodity (Bastu).
"Design" means a model drawing/sketch
(Namuna naksa) in a printed or written form,
filled or woven by Karchohi, stitching form,
made or carved (Dhaleko) by the soil or
Mayan , any machine or parts thereof made
by any instrument (Hatiyar) or made pursuant
to the Chemistry (Rasayan Shastra).
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"New invention" means a product or commodity
which was not in use or which was not known to
anyone within Nepal till the date of submission
of the application.
"Trademark" means the mark (Nissa) which is
used to identify the manufacture (product) or
owner of the goods or commodity
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"New invention" means a product or commodity
which was not in use or which was not known to
anyone within Nepal till the date of submission
of the application.
"Trademark" means the mark (Nissa) which is
used to identify the manufacture (product) or
owner of the goods or commodity
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Section 2 (a) of Copy Right Act, 2002
"Work" means any work presented originally and
intellectually in the field of literature, art and science and
in any other field, and this term also includes the
following work:
(1) Book, pamphlet, article, thesis,
(2) Drama, dramatic-music, dumb show and a work
prepared to perform in such manner,
(3) Musical notation with or without words,
(4) Audio visual works,
(5) Architectural design,
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(6) Fine Arts, painting, work of sculpture, work
of woodcarving, lithography, and other work
relating to architecture,
(7) Photographic work,
(8) Work of applied art,
(9) Illustration, map, plan, three-dimensional
work relating to geography, and scientific
article and work,
(10) Computer program.
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Paris Convention For the Protection of Industrial
Property 1883 and as amended in 1979-
(Recognized by Nepal on 2057/4/9)
Berne Convention for the Protection of Literary
and Artistic Works 1886) - (January 11, 2006)
TRIPS (Trade Releted Aspects of Intellectual
Property Right 1994) (April 23, 2004 )
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The Nice Agreement Concerning the
International Classification of Goods and
Services for the Purpose of the Registration of
Marks 1957
Convention on establishment of World
Intellectual Property Organization, 1967 ( 4
February 1997)
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Paris and Berne Conventions
Paris Convention for the protection of Industrial
Property signed in March 1883 was one of the
earliest treaties to protect IP of nature of
inventions, trade marks and industrial designs.
Came into force in 1884 with 14 member states
which set up an International Bureau to carry
out administrative tasks, such as organizing
meetings of the members states. The
Convention now has 169 members and its
provisions are fully dovetailed in the TRIPS
Agreement.
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The Berne Convention for the Protection of
Literary and Artistic Works, first adopted in
Berne, Switzerland in 1886 is an international
agreement for the protection of copyright.
National laws could not protect an author’s
work from being copied in other countries.
While the Paris Convention of 1883 was
aimed to protecting patents, trade marks and
industrial designs, the Berne Convention aims
at providing cross-national protection for
literary and artistic works.
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Madrid Agreement and Protocol
The Madrid Agreement on the International
Registration of Marks was first concluded in 1891
and revised several times. The present amended
version was issued in 1979. In addition to the
Agreement, there is the Madrid Protocol relating
to the Agreement, which was concluded in 1989,
with the aim of rendering the Madrid system
relatively more flexible and compatible with the
domestic legislations of certain countries which
had not been able to accede to the Agreement.
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Madrid Agreement came into operation on 1
April 1996. Currently, 67 Countries are the
contracting parties to the Madrid protocol.
They include China, Japan and UK. US become
a contracting party on 2 Nov. 2003 and EU on
1 Oct. 2004.
The Madrid system is administered by the
World Intellectual Property Organization
(WIPO), Geneva.
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Convention on establishment of World
Intellectual Property Organization, 1967 (4
February 1997)
TRIPS
Currently, international protection for
Intellectual Property is provided within the
framework TRIPS Agreement or Agreement on
Trade-Related Aspects of Intellectual Property
Rights of 1995.
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The Agreement has been worked out in the
context of the establishment of the World
Trade Organization and the desire its
members to ensure smooth and unhindered
growth of trade in goods and services as well
as the protection of IP.
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If you have any questions or concerns, please discuss ..
Thank you !
Saroj Shrestha 24
