Can You Trademark a Colour, Sound or Smell? Real Examples

In Nepal, a colour, sound or smell may be argued as a trademark, but the Patent, Design and Trademark Act 1965 gives no clear special route. The Department of Industry decides each application, and an unopposed case typically takes about 12–14 months.

Key Takeaways

• Nepal’s Patent, Design and Trademark Act 1965 defines a trademark as a word, symbol, picture or combination used to distinguish goods or services.
• The Act does not expressly create a separate system for colour, sound or smell marks. The Department of Industry must assess the application under the general trademark rules.
• A single colour needs strong proof that buyers associate it with one business, rather than seeing it as decoration or an industry standard.
• A sound mark faces a practical representation problem. A musical score may help, but Nepal has no clearly published body of DoI decisions confirming routine registration.
• A smell trademark is especially difficult because a written description or chemical formula may not clearly identify the scent itself.
• Nepal is first-to-file. A business should search early, file in every relevant NICE class, and avoid relying only on long use.
• A conventional word mark, logo or combined mark usually gives clearer protection while you build evidence for a non-traditional mark.

What does Nepalese law say about non-traditional trademarks?

The Patent, Design and Trademark Act 1965 defines a trademark through words, symbols and pictures used to distinguish goods or services. It does not expressly name colour, sound or smell marks. The Department of Industry therefore applies the general registration framework, including distinctiveness, prior rights, public-interest limits and clear identification of the claimed mark.

Section 2(c) describes a trademark as a “word, symbol, or picture or a combination thereof” used by a firm, company or individual to distinguish its products or services. That wording is not a guarantee that every unusual sign qualifies. It means an applicant must present a careful argument that the claimed feature functions as a source identifier.

The Act also prevents registration where a mark is already registered in another person’s name, damages another trademark’s goodwill, or harms public conduct, morality or the national interest. The DoI is both the registration office and a quasi-judicial authority for industrial-property matters. You can review the official Nepal law resources and the Department of Industry website, but published guidance on these unusual marks remains limited.

Can you register a colour mark in Nepal?

A colour mark may be arguable in Nepal, but a single colour must do more than decorate packaging. The applicant should show that relevant Nepali consumers recognise the colour itself as indicating one business. The DoI will also consider whether the colour is common, functional, descriptive or needed fairly by competitors.

This is known as acquired distinctiveness. It means the public has come to connect a sign with a particular commercial source because of sustained use. A colour used on a shop wall for a few months will rarely prove that connection. A colour applied consistently to vehicles, uniforms, packaging and advertising may create a stronger case, but the evidence still needs to be persuasive.

A colour combination is often easier to define than a single colour. For example, a particular arrangement of teal and gold on delivery boxes may be more distinctive than “teal” alone. The application should show the exact shades, layout and claimed use. Avoid claiming every use of a colour across unrelated goods or services.

What evidence supports colour mark registration?

Evidence should show actual use, market reach and consumer recognition in Nepal. Useful material can include dated advertising, sales records, packaging, photographs, invoices, media coverage and customer research. The DoI does not publish a fixed evidence threshold for colour marks, so the strength, consistency and relevance of the bundle matter.

Keep the evidence tied to the colour alone. If every advertisement prominently displays a distinctive word and logo, the examiner may conclude that customers recognise those elements, not the colour by itself. A combined logo registration can still be valuable, but it does not automatically prove ownership of the background colour.

Before filing, use a search of Nepal’s trademark database and check similar marks in the intended class. A professional search can also assess confusingly similar words, devices and colour arrangements. This matters because Nepal follows a first-to-file approach: earlier valid filing can matter more than an informal claim that your business used the colour first.

Can you register a sound mark in Nepal?

A sound mark is not expressly excluded by Nepal’s Act, but sound mark Nepal applications face an unsettled practical test. The DoI must be able to understand what the applicant claims, examine distinctiveness, publish notice and let others oppose it. A sound recording alone may not solve that identification problem.

An applicant might provide musical notation, a detailed description and an audio file as supporting material. The notation should identify the melody, rhythm and relevant features. A vague description such as “a lion roaring” does not define one stable commercial sign. Nor should the claim cover a sound that naturally results from the product or service.

A short audio logo used consistently before a digital service begins may have a better distinctiveness argument than a common notification tone. Even then, there is no clearly established public DoI precedent confirming routine registration of sound marks. Treat the application as a legal and procedural test, not as a guaranteed filing route.

Can you register a smell trademark in Nepal?

A smell trademark is the hardest option because the protected subject must be identified clearly and consistently. A chemical formula identifies ingredients, not necessarily the scent perceived by people. A written description can be subjective. These problems make examination, publication, opposition and later enforcement especially uncertain at the DoI.

Adding fragrance to a product may also be functional or customary rather than distinctive. A scented soap, air freshener or cosmetic may be expected to smell pleasant. A scent that helps the product work, masks an odour or forms part of its ordinary appeal is a weak candidate for exclusive trademark rights.

Nepal has no widely known public registration example that makes smell marks a reliable business strategy. If scent is central to your brand, protect the name, logo, packaging and other distinctive features first. Keep confidential formulation information separate; trademark registration is not a substitute for trade-secret controls.

What is the Nepal filing process for these marks?

The Department of Industry follows the same broad trademark sequence for unusual marks: application, examination, Industrial Property Bulletin publication, a 90-day opposition window, registration and certificate. One application covers one NICE class. A mark used across several classes needs separate applications, each with its own scope and evidence.

1. Clear the idea. Search earlier marks and decide whether the colour, sound or smell truly identifies your business.
2. Choose the NICE class. Use the international 45-class system used in Nepal. Goods fall mainly in Classes 1–34 and services in Classes 35–45.
3. Define the representation. Show colour shades and placement, sound notation and supporting audio, or the proposed scent description and technical material.
4. Prepare the application. Include the form, mark label or representation, applicant details and required supporting papers.
5. File with the DoI. The filing establishes your place in Nepal’s first-to-file system, subject to the application being valid.
6. Answer examination issues. Respond to similarity, distinctiveness, clarity or public-interest concerns with focused evidence.
7. Handle publication. After Industrial Property Bulletin publication, third parties have 90 days to oppose the application.
8. Obtain and maintain the certificate. If the process succeeds, registration lasts seven years and can be renewed for further seven-year terms.

Which NICE classes could apply to a colour, sound or smell?

The NICE class depends on the goods or services, not on whether the mark is a colour, sound or smell. A Kathmandu delivery service may consider Class 39; a restaurant may consider Class 43; software services may fall in Class 42. Confirm the precise specification before filing, because Nepal requires one application per class.

Our NICE class finder can help with an initial classification, but it does not replace a careful review of the goods and services wording. A broad, careless specification can create objections or fail to describe how you actually trade.

What documents and evidence do you need?

A domestic applicant normally prepares the trademark application, mark label or representation, notarised Power of Attorney, company board resolution where relevant, industry certificate and latest tax clearance letter. A foreign applicant also needs the relevant home registration material and must file through a Nepal-based agent or representative.

For a colour, add exact shade references, placement diagrams and dated examples of use. For a sound, add notation, a precise written description and an audio file as supporting material. For a smell, explain the scent carefully and provide technical material, while recognising that this may not overcome the representation problem.

If you claim acquired distinctiveness, organise evidence by date and market. Advertising, invoices, sales records, packaging, distribution, press coverage and customer research should point to Nepal, not only another country. Our team can help assess the filing record through trademark search and clearance support.

How long and what does a non-traditional mark cost?

A straightforward unopposed trademark in Nepal typically takes about 12–14 months from filing to certificate. A smooth case can take about 6–8 months, but unusual marks may take longer because representation, distinctiveness and examiner questions require more work. Publication is followed by the 90-day opposition period.

The total cost depends on the number of NICE classes, government charges, professional preparation, evidence collection, translations, notarisation and responses to examination issues. A colour, sound or smell application may require more professional work than a standard word mark. Check the current structure with the IP Sewa tools or ask our team through the contact page; no responsible estimate should ignore the mark’s complexity.

Why should you file a conventional mark first?

A word mark, logo or combined word-and-device mark usually gives clearer notice and easier enforcement than a colour, sound or smell. It can establish your brand while you collect evidence. Later, you may consider a separate non-traditional application if customers genuinely recognise the additional feature as your source identifier.

Do not confuse the colour of a logo with ownership of that colour everywhere. A logo registration protects the mark as registered, within its stated scope. Similarly, using “TM” does not create registered rights, and “®” should be reserved for a mark actually registered in the relevant jurisdiction.

What is a realistic Nepal example?

Imagine a Kathmandu delivery company called “Himalayan Dash” that uses one teal shade on vans, uniforms and parcel boxes. After several years of consistent Nepal-based promotion, customers in Pokhara and Biratnagar recognise the teal presentation before reading the name. The company could consider a Class 39 colour application, supported by use evidence, while protecting the name and logo separately.

That example does not guarantee registration. The DoI may ask whether the colour is distinctive, whether the claim is too broad, or whether competitors need the same colour. A new business should not wait years for a colour mark. Registering its word mark and logo first is the safer commercial decision.

What alternatives protect the same brand investment?

Use a registered word mark for the business or product name, a device mark for the logo, and an industrial design application for a qualifying product appearance. Packaging arrangements may also need careful trade dress and passing-off advice. Nepal is not part of the Madrid System, so foreign owners need direct national filing through a Nepal-based representative.

Keep brand guidelines, product photographs, advertising records and launch dates. These materials support consistent use and may help prove acquired distinctiveness later. If another applicant files a conflicting mark, an opposition must be considered within the applicable 90-day publication window. Our team can help with trademark opposition and enforcement.

In short, should you apply for a colour, sound or smell mark?

Apply only after testing whether the feature truly identifies your business and whether the DoI can examine and publish it clearly. Colour marks are the most arguable with strong evidence, sound marks remain procedurally uncertain, and smell marks are exceptionally difficult. Register the name and logo first wherever possible.

• Search before filing.
• Choose every relevant NICE class separately.
• Define the claimed feature with precision.
• Keep Nepal-specific evidence of use and recognition.
• Plan for examination, publication and opposition.

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This article gives general information, not legal advice. To check an existing mark, start with the Nepal trademark database; for filing strategy, class selection or a difficult colour, sound or smell application, contact the IP Sewa team or review our trademark registration service.