Legal Environment for Business in Nepal

2 January 2017

1Saroj Shrestha

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

timeCan not store for particular place;Territorial Jurisdiction;Exclusive Rights;Bundle of Rights There can be various IP

on same product i.e. Coca ColaMultiple 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 -k]6]06 l8hfog / 6«]8dfs{ P]g @)@@_

• Copyright Act, 2002 -k|ltlnlk clwsf/ P]g @)%(_

• Copyright Rules, 2004 -k|ltlnlk clwsf/ lgodfjnL @)^!_

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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 ProtocolThe 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)

TRIPSCurrently, 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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24Saroj

Shrestha

If you have any questions or concerns, please discuss ..

Thank you !