Key Points - Trademark Registration and Protection in Nepal

 

In the present highly competitive business environment, economies across the globe are becoming increasingly knowledge and technology-oriented, due to which, Intellectual Property (IP) has gained significant importance too. In line with this global development, Nepal has recognized the value of IP as well. There is indeed a growing trend in the nation both on the part of the legislators and the judiciary to give adequate protection to IP assets and enforce Intellectual Property Rights (IPRs – including trademarks, patents, copyrights, and industrial designs). In this blog, we’ll be giving an overview of Trademark Registration and protection in Nepal.

 

GENERAL INFORMATION 

 

In Nepal, the Patent, Design, and Trademark Act, 1965, forms the legal basis of trademark registration and protection.

The Department of Industries (a sub-department within the Ministry of Industry), situated in the capital city of Kathmandu, governs and deals with the mechanism of registration of trademarks.

A trademark registered could be any name, color, logo, symbol, or sound that uniquely identifies the source of the goods and services. In Nepal, the trademarks protected can be categorized as follows:

1.     CONVENTIONAL TRADEMARKS, including word mark, device mark, collective mark, and series mark.

2.     NON-CONVENTIONAL TRADEMARKS, including 3-D mark, color mark, slogan mark, shape mark, position mark, and texture mark.

3.     WELL-KNOWN TRADEMARKS

 

A Trademark Application in Nepal can be filed in 45 classes – out of which classes 1-34 are for goods and classes 35-45 are for service marks. The 11th edition of Nice Classification is accepted by the concerned trademark authority.

Before filing a trademark application in Nepal, it is highly advisable to conduct a Trademark Search to determine the availability of the proposed trademark and the existence of identical or similar registered trademarks in the trademark register. Performing a trademark search is not mandatory in Nepal for filing the trademark application; however, by doing the same, companies and individuals can avoid the oppositions and objections, which may be put forward by third parties against their proposed trademarks.

For filing a trademark application in Nepal, the following information and documents are required:

1.     Power of Attorney (POA) – Notarized

2.     Home/Foreign Registration Certificate (with required translation) – Notarized

3.     Declaration/Affidavit of USE – Notarized

4.     Priority Document (with required translation) – Certified

5.     Declaration of Ownership – Notarized

6.     Declaration of Nationality/Residence – Notarized

 

TRADEMARK REGISTRATION PROCEDURE IN NEPAL

 

Trademark registration is a lengthy process in Nepal, and it takes 9 to 12 months approximately to obtain registration. The procedure of trademark registration in Nepal is as follows:

1.     FILING A TRADEMARK APPLICATION: In Nepal, a trademark application can be filed only for a single class; multi-class trademark applications are not allowed. Additionally, a trademark application or a Priority Trademark Application claiming priority from a convention country can also be filed in Nepal within six (06) months from the priority date.

2.     EXAMINATION PHASE – NOTICE OF ACCEPTANCE OR REFUSAL: Once a trademark application gets filed, the Registrar then examines the proposed trademark corresponding to the aspects of distinctiveness, conflict (identical or similar to already existing registered trademarks), and the possibility of deceptiveness. The Registrar may accept or refuse the trademark application as per the provisions of the Act.

3.     PUBLICATION OF PROPOSED TRADEMARK – If the Registrar accepts the trademark application in the examination phase, then the proposed trademark gets advertised/published in the Trademarks Journal to invite the public for filing opposition (if required or if any) against its registration.

4.     OPPOSITION OF PUBLISHED TRADEMARK – Upon publication of the proposed trademark in the Trademarks Journal, any person can initiate opposition proceedings against the said trademark by filing a notice of opposition within three (03) months from the date of publication of the proposed trademark in the official gazette.

5.     REGISTRATION AND RENEWAL – If there are no opposition proceedings initiated against the proposed trademark or the oppositions are resolved well in favor of the trademark applicant, then the Registrar issues the Certificate of Registration to the applicant. In Nepal, trademarks are registered for an initial period of seven (07) years starting from the date of the registration, which can be further renewed indefinitely for periods of seven (07) years upon payment of the prescribed renewal fees.

 

CANCELLATION PROCEEDINGS

A registered trademark in Nepal is vulnerable to a cancellation action by the Department of Industries or a third party if it is not used within one (01) year from the date of registration. For view source: https://www.kashishipr.com/blog/key-points-trademark-registration-and-protection-in-nepal/

 

 

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Instagram Opposes the Registration of Instagem Trademark

The widely known photo and video-sharing social networking platform, Instagram, has quite recently filed an opposition before the Trademark Trial and Appeal Board (TTAB) against the Trademark Registration of the word INSTAGEM by Market Organization Inc. In its opposition filed, Instagram has claimed that the INSTAGEM trademark will cause a lot of consumer confusion and also damage the reputation of Instagram. The applicant, Market Organization, is willing to get the mark INSTAGEM registered in International Class 41 for ‘Video Editing.’

According to Instagram, its social media platform was launched in 2010, and since then, it has been consistently using the INSTAGRAM trademark in connection with its platform in the US. It also owns a variety of Trademark Applications and registrations for the mark INSTAGRAM covering several goods and services. Besides Instagram’s social networking platform, the trademark applications and registrations include –

1.     Providing use of online temporary non-downloadable software for allowing the transmission of images, audiovisual, and video content

2.     Both downloadable and non-downloadable computer software for modifying the appearance and allowing the transmission of images, audio-visual, and video content

Instagram has alleged that Market Organization’s services are quite similar to the ones it offers corresponding to the INSTAGRAM mark. Instagram is now opposing this trademark registration as it believes that the applicant’s proposed trademark is deceptively similar to the INSTAGRAM mark, and the same holds immense potential for creating confusion in the minds of the customers or users. According to Instagram, the customers might also end up thinking that the applicant is or has been connected or affiliated with Instagram. Another possibility lies in the customers believing that the applicant’s services provided under the proposed trademark have been authorized, sponsored, endorsed, or licensed by Instagram. Additionally, it has also stated that the INSTAGEM mark shall dilute the INSTAGRAM mark and cause great damage to its reputation.

All in all, Instagram wants the trademark registration of the INSTAGEM mark to get refused.

For view source: https://www.kashishipr.com/blog/instagram-opposes-the-registration-of-instagem-trademark/

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What will happen if you are late in Getting your Trademark Renewed?

In most of the nations across the globe, the duration of Trademark Protection for registered trademarks is ten years; however, indefinite trademark protection can be achieved if the registered trademark is renewed once every ten years. Lateness in filing a trademark renewal application can lead to many complications for the owner, like increased fees, penalty, or losing the protection of the Registered Trademark altogether. Remember, loss of trademark protection is the most serious repercussion of failing to file your trademark renewal on time. Let us now make ourselves familiar with all the risks involved in the same scenario so that you can understand the importance of filing your trademark renewals on time.

1.     Someone else may take the registered trademark

Although it is a rare occurrence – however, there may be a scenario where a competitor snaps up the mark and registers it or a similar one as his or her own. Without any second thoughts, the marks, which are identical or similar to the already existing registered trademarks, aren’t registrable. But, if a trademark is no longer registered, then similar or identical marks can get registered. If there aren’t any forms of pre-existing rights interfering with the competitor’s Trademark Registration of the mark, then it shall never get rejected. This scenario, therefore, leaves the bright possibility of you losing your registered trademark to your competitor if you fail to file its renewal.

2.     Trademark re-registration may not be permitted

Trademark protection may also be lost altogether if, after failing to get a trademark renewed and looking to re-register it, a similar or identical mark gets registered in the meantime. According to EUIPO’s set of guidelines and regulations, a proposed trademark will be denied registration if it is identical or similar to an already existing trademark or interferes with the pre-existing rights. If no such problems existed while the mark was registered but arise after the passing of the renewal date, then all the attempts made to re-register it shall be denied.

3.     Limited classes

If in case, a mark similar or identical to yours gets registered in the Nice Classes, in which your mark was originally registered, then re-registration in the same classes shall not be permitted. According to EUIPO’s set of guidelines and requirements, if a proposed trademark seeks registration corresponding to the goods where there is an already existing registered trademark, then the registration shall be denied. Hence, if you miss your renewal date and go ahead with re-registering the mark at some later stage, then the goods or services against which you intend to use the same may be limited.

4.     Limited countries

In the same manner, if you fail to renew a trademark in multiple countries and a new similar or identical mark gets registered in some of the countries in the meantime, then re-registration at some later stage may geographically be limited as well. The consequences of this inability to re-register your mark in some specific nations can be harsh, which, in turn, would hinder your business profits and prospects significantly.

5.     Late trademark renewal fees

Irrespective of whether any of the above mentioned potential issues come into action or not, the owners who delay the renewal of their registered trademarks undoubtedly encounter additional costs in the form of late fees. In general, the national IP offices do give a grace period after the renewal date, in which the renewals can still be filed. However, waiting until that moment shall bring in greater official charges as compared to filing the renewals on time. For view source: https://www.kashishipr.com/blog/university-of-washington-wins-patent-for-its-innovative-air-filtration-technology/

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Understanding the Utmost Importance of Trademark Registration in India

If you are planning to create your brand, you must come up with something one of a kind to prevail in the present highly competitive business environment. The real thing is, either you provide an entirely dynamic service or product or opt for differentiation because there is a lot of marketplace share upon which people already have their eyes set. In this scenario, it becomes exceedingly imperative to understand the way you can uphold your capabilities in your business, which shall, in turn, make you specific and easily identifiable amongst your customers and set your magnificence aside from your competitors.

Without any second thoughts, Trademark Registration is undoubtedly the top-most priority of every business firm and organization.

In India, the Office of Patents, Designs, and Trade Marks, beneath the department for Industrial Policy and Promotion, the Ministry of Commerce & Industry, and the Government of India, deals with the mechanism of trademark registration and protection as per the Trade Marks Act of 1999. The overall regime corresponding to trademark registration in India has gone through some crucial modifications in all these years to enhance Intellectual Property Protection in the country.

A Trademark Safeguards your Brand Name

·         It assists your customers in differentiating your offerings, be it your services or products, from the ones of your arch competitors.

·         It serves as an exclusive demonstration of your high-quality services and products in the marketplaces.

·         It enables you to earn goodwill and create a positive brand reputation.

·         It serves as the most effective business tool and establishes your brand’s identity

·         It helps in gaining customer trust and loyalty.

With trademark registration, you can boost your brand name’s recognition efficiently. Furthermore, advertising your brand and the related products and services with the registered trademark shall make your business lead towards the ultimate path of success.

A Trademark is your Best Communication Tool

·         It effectively wraps up several technical problems in a single registered mark together with the company name, its reputation, offerings covered, and the consumers’ requirements that it caters.

·         It serves as a critical medium of grabbing the customers’ attention and further helps them in identifying your products.

A Few Other Points to Consider:

·         After getting your proposed mark registered as a trademark, all you have to do is renew the same after every ten years. The entire trademark registration process and subsequent renewals have a pretty lesser fee involved in contrast to the other forms of IP.

·         A trademark provides the customers with the capability of protecting themselves via relying on the recognized manufacturers’ products and services in the market.

·         You can efficiently protect your registered trademark by taking legal action against its unauthorized use. You can prevent people and other business firms from using your registered trademark by warning them; however, if they still attempt to infringe upon your registered trademark, then you must initiate legal proceedings against them.

By registering your proposed mark as a trademark in India, you can safeguard your brand entity, enjoy all the benefits mentioned above, and experience immense growth and success in your business.  For view source: https://www.kashishipr.com/blog/understanding-the-utmost-importance-of-trademark-registration-in-india/

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Intellectual Property (IP) Enforcement in the Online World

In the present digital era, the internet has undoubtedly created a plethora of opportunities for business firms, organizations, and companies, as a result of which, they are efficiently able to communicate their brand messages and reach out to their potential customers. However, if we keep the positive aspects of the internet aside, which include its global reach, versatility, and openness, we can observe that the highly unregulated nature of the internet has led to a fertile ground for Intellectual Property (IP) Infringement corresponding to trademarked brand names, registered designs, and copyrighted content. Online infringement of IP assets covers the sale of counterfeit services and products through various digital channels and other activities, such as phishing, cybersquatting, content piracy, and Search Engine Optimization (SEO) abuse.

Exploring the Different Forms of IP

In a lot of countries across the globe, there are four prime forms of IP available, namely patent, trademark, trade secret, and copyright, and they can secure legal Intellectual Property Protection. IP infringement refers to the violation of a protected Intellectual Property Right (IPR). IP Rights are the rights given to an inventor or creator for his or her original and unique works. It implies that IP infringement is nothing but violating the right protected by a patent, copyright, or trademark. While having a patent, copyright, or Trademark Registration in hand, the creator or inventor holds the exclusive rights to initiate legal proceedings against the infringer, collect damages, and further stop the infringing activity.

Understanding the Need for Online IP Enforcement

In the present highly-competitive business environment and fast-paced society, it is essential to have a standard process or method corresponding to online IP enforcement, which most of the companies out there can adapt conveniently irrespective of their territorial jurisdiction. The reason behind doing the same lies in the fact that companies nowadays find it exceedingly arduous to monitor online IP infringement. Additionally, they can no longer rely on traditional legal remedies for dealing with such cases. Hence, they must come up with a multi-faceted and proactive strategy concerning trademark and Copyright Protection, which shall, in turn, offer efficient ways of adapting well to the extreme challenges of the online world. Doing so is of the utmost importance for companies and startups that have a lot to do with publishing content online. There are a few forms of IP that may give the owners the exclusive rights only in the nation where their IP is registered, which further leads to the need of having some extra-territorial rights in place to be independently recognized or proved by a court of law. However, when it comes to the online world, it becomes tough to implement such principles because it is quite convenient to maintain an anonymous identity by using offshore internet servers. As a result of having this kind of virtual presence, the infringers or violators end up generating massive profits. The other issue associated with the traditional approach resulting in successful online IP infringement includes the aspect of lack of uniformity in the legal landscape. Varying IP regulations, rules, and laws in different jurisdictions often result in making it hard to navigate the legal landscape.

Another crucial factor is identifying the entity or individual liable for online IP infringement and further taking appropriate action. Infringed upon content may be there on official websites of news publications, independent sellers, or individual blogs, where identifying the infringer may prove to be a lot more convenient. On the other side, such content may be there on media-sharing platforms such as Pinterest or YouTube, social media platforms like Instagram or Twitter, and seller platforms such as an app store or Amazon, which may make it arduous to come across the infringer. Furthermore, infringing content may also be indexed in widely-known search engines like Google, which would make such content convenient to come across and popularize over the original content, thereby resulting in monetary damages to the IP owner.

What is a Take-Down Request?

A take-down request refers to the procedure for asking an Internet Service Provider (ISP) or the search engine to disable or remove the access to outdated, irrelevant, or illegal information. Such requests may be issued for any piece of content that infringes on any copyright, trademark, patent, personality rights, or privacy rights. Many nations around the world have well-defined laws corresponding to requiring the ISPs or intermediaries to give to-the-point procedures for the IP owners to submit a request along with providing all the supporting information or necessary evidence concerning the take-down request. In some scenarios, such laws also set a time limit, within which the intermediary needs to respond to such requests or take appropriate action against the infringing content reported by the IP owner.✅  For view source: https://www.kashishipr.com/blog/intellectual-property-ip-enforcement-in-the-online-world/

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