Absolute vs Relative Grounds for Trademark Refusal in Nepal

Absolute grounds concern the mark itself — it is descriptive, misleading or offensive. Relative grounds concern someone else's earlier rights. Nepal's Patent, Design and Trademark Act 1965 never uses either phrase, but its four refusal grounds split neatly along that line.

Key takeaways

• Absolute grounds ask whether your sign can work as a trademark at all. No other owner has to exist.
• Relative grounds ask whether it collides with an earlier filing or an earlier owner's goodwill.
• The words are borrowed. Nepal's Sec. 18 lists four grounds and does not group them.
• Nepal has no express statutory "descriptive" bar; descriptiveness bites through the definition of a trademark and through examination practice.
• The two kinds need different replies. You argue a relative objection on the record; you usually fix an absolute one by changing the name.

What is the difference between absolute and relative grounds?

Absolute grounds are about your sign on its own. Put the rest of the register to one side: is this thing capable of telling buyers who made the goods?

Relative grounds are about a collision. Somebody else got there first, or has goodwill your mark would damage.

The test that separates them is simple. If the objection would still exist in an empty register, it is absolute. If it depends on another owner, it is relative.

Does Nepal's Act use those words?

No. The terms come from the United Kingdom, the European Union and India, where the statutes use the headings explicitly.

Nepal's 1965 Act does not. It gives the Department of Industry (DoI) a single proviso in Sec. 18 with four grounds in a list, and leaves the grouping to whoever is reading it.

That matters when you read foreign guides. Arguments built on another country's statutory headings carry no weight at the DoI, even where the underlying idea is the same.

Which grounds does Sec. 18 actually list?

Four. The DoI shall not register a mark that hurts the prestige or reputation of a person or an institution; that adversely affects public conduct, morality or the national interest; that damages the goodwill of another person's trademark; or that is already registered in another person's name.

The first two are about your own sign. The last two are about an earlier right. That is the whole absolute-and-relative distinction, in a Nepali statutory form.

The Act's text is published by the Nepal Law Commission if you want to read the proviso in full.

Where does "descriptive" fit, if the Act does not say it?

This is the gap worth understanding, because most guides skip it. Read the four grounds again: none of them says a descriptive or generic name is barred.

The bar comes from further up. Sec. 2(c) defines a trademark as a word, symbol or picture used to distinguish one business's goods or services from another's. A word that cannot distinguish is not doing the job the definition describes.

Examination practice does the rest. In day-to-day DoI work, a name that merely describes the goods is a familiar reason for an objection.

The practical consequence is that a distinctiveness argument in Nepal is about the definition and the examiner's assessment, not about quoting a numbered absolute-grounds subsection that does not exist here.

What are the common absolute-ground problems?

Descriptive and generic names lead. "Pure Honey" for honey and "Kathmandu Coffee" for coffee both hand a competitor an argument that the words belong to everyone.

Misleading signs are next. A tea brand styled to suggest a foreign origin it does not have can draw an objection even though no earlier mark exists.

Then the public-interest category: national flags, state emblems, official-looking seals and anything that implies government approval. A private brand should not borrow public authority.

Can a descriptive name ever be registered?

Sometimes, with help. The usual route is to add something distinctive — a coined word, an unexpected pairing — so the mark is not only the description.

Evidence that the public already treats the name as yours can also matter, though it is slower and harder to assemble than most applicants expect.

The honest advice is usually the unwelcome one: a genuinely descriptive name is cheaper to replace at the naming stage than to defend later. Our brand name generator is one way to push past the obvious options.

What are the common relative-ground problems?

An identical word mark for identical goods is the clearest case, and also the rarest, because most applicants notice it themselves.

The common case is similarity: names that sound alike, look alike or mean the same thing. "Himal Brew" and "Himāl Brew" would be read the same way by most buyers.

Relatedness of goods matters as much as the names. Two marks in the same class can cover unconnected products, while two in different classes can sit on the same shelf. What counts as confusingly similar works through the comparison.

Do well-known marks get extra protection in Nepal?

Nepali decisions say yes. In Kansai Nerolac Paints v. Rukmani Chemical Industries the Supreme Court ruled for the Japanese owner against a local registration, and held there is no time bar on revoking a mark registered in bad faith.

The DoI has gone the same way. In 2023 it rejected a local Class 35 application for VIRGIN where the well-known owner held other classes, and rejected a HOLIDAY EXPRESS TRAVELS application against HOLIDAY INN EXPRESS.

Both decisions extended protection across classes and to goods that do not compete. Choosing a different class does not make a famous name safe.

Nepal has been a party to the Paris Convention since 2001 and joined the WTO in 2004, and those obligations show up in this line of reasoning.

Does a different class avoid a relative objection?

Not reliably. Class numbers organise the register; they do not decide whether buyers would be confused.

A packaged-food mark can run into trouble against a similar mark for food retail or restaurant services, because a customer might reasonably assume one business behind both.

Choosing the class well still matters for what your registration covers, and Sec. 18A takes one application per class. The NICE class finder and our guide to choosing the right class help with that side.

How does first-to-file change the picture?

It decides who wins a relative-grounds contest. Nepal awards rights on registration, and the earlier valid application is normally in the stronger position.

A business that has traded under a name for years can still lose to a later arrival who filed first. Long use is useful evidence in some arguments; it is not a substitute for a filing date.

It also means an earlier application counts before it has been registered. A quick web search will not show you that; the register might.

How do the two grounds change your reply?

Completely. Sorting the objection is the first thing to do when a report arrives, because the wrong kind of answer wastes the deadline.

A reply that answers only one ground has not answered. Reports often raise both kinds at once.

How do you reduce refusal risk before filing?

Almost all of it is decided before the application goes in. These six steps deal with both kinds of ground in the order they bite.

1. Pick a distinctive sign. An invented or unexpected word gives an examiner less to object to and gives you more to enforce.
2. Check the honesty of the claim. Remove anything that suggests an origin, quality or approval you do not have.
3. Keep away from official signs. Flags, emblems and seal-like devices belong to the state, not to a brand.
4. Search for earlier marks. Exact names, spelling variants, sound-alikes and close logos. Our free trademark search covers marks published in DoI bulletins; it shows published marks, not registration status.
5. Choose the classes from what you sell. An over-broad list invites conflict; a narrow one leaves gaps.
6. File promptly. In Nepal the earlier valid filing usually beats the earlier user.

A written clearance opinion goes further than any free tool, and our trademark search and clearance team produces one before a filing goes in.

When can a third party raise these grounds?

After publication. An accepted mark appears in the Industrial Property Bulletin, and under DoI practice for trademarks anyone may oppose it within 90 days.

The bare text of the 1965 Act says 35 days for objections after publication, and that shorter figure is the one used for patents and industrial designs. Confirm the date that applies to your own file rather than assuming.

Opposition is mostly a relative-grounds forum, because the people watching the bulletin are usually owners of earlier marks. If a conflicting mark appears, our opposition and enforcement team can act inside the window.

What does this look like in practice?

Imagine a Pokhara tea seller applying to register "Nepal Tea" for tea. This is an illustration, not a real case.

That is an absolute problem. The phrase describes the goods and their claimed origin, and adding a mountain drawing does not make the whole thing distinctive.

Now the seller switches to the coined name "Himtara" and finds an earlier "Himtara" application for tea and herbal drinks. Same applicant, entirely different problem.

The second one is relative, and the next step is a comparison of the goods, the dates, the spelling, the sound and the overall impression — not a redesign of the label.

Common mistakes

• Quoting foreign statutory headings. Nepal's Act has no absolute-grounds section to cite.
• Answering the wrong kind of objection. Evidence of use does nothing about an earlier filing date.
• Changing one letter. Similarity is judged on the whole impression, not on spelling alone.
• Trusting a different class. Related goods and well-known marks both cross class lines.
• Treating a company record as protection. Incorporation and PAN registration are not trademark rights.
• Relaxing after acceptance. Publication opens a 90-day window in which others can object.
• Forgetting use. Sec. 18C lets the DoI cancel a mark not put into use within a year of registration.

In short

Absolute grounds are a verdict on your own sign; relative grounds are a verdict on its relationship to someone else's. Nepal's Act does not use the labels, but Sec. 18's four grounds divide two and two along exactly that line.

Fix an absolute problem at the naming stage, where it is cheap. Reduce a relative one by searching the register before you file, and by filing early in a first-to-file system.

If an objection has already arrived, sort it into one bucket or the other before drafting anything. For the wider list of reasons applications fail, see why trademark applications are rejected in Nepal.

People also search for

• What makes two trademarks confusingly similar?
• Why are trademark applications rejected in Nepal?
• How do you check whether a name is available?
• What is the trademark application process?
• What is a trademark in Nepal?

Most refusals are decided by the name you choose and the search you skip. Run a candidate through our free conflict checker first, then contact our team if a close mark appears or an objection has already landed.