Registered vs Unregistered Trademark: Which Protects You?

In Nepal, a registered trademark gives you exclusive, enforceable ownership under the Patent, Design and Trademark Act 1965 — an unregistered mark does not. The Department of Industry (DoI) treats the first valid applicant as the owner, not the first user. Without a registration certificate, you rely on a difficult common-law claim called "passing off" that puts the entire burden of proof on you.

Key Takeaways

• Nepal follows a first-to-file system — registration creates the right, not prior use.
• Only a registered trademark gives you a DoI certificate, a 7-year renewable term, and a statutory basis to stop infringers.
• An unregistered mark has no automatic legal protection under the PDTA; your only option is a passing-off lawsuit.
• Passing off is expensive, slow, and requires you to prove reputation, misrepresentation, and damage — all three, yourself.
• You cannot use the ® symbol or file an opposition at the DoI with an unregistered mark.
• Someone else can register your unregistered brand name and legally stop you from using it.

What is a registered trademark under Nepal's law?

A registered trademark is a word, symbol, logo, or combination that the Department of Industry has formally accepted and recorded under Sec. 18 of the Patent, Design and Trademark Act 1965. Registration gives you a seven-year, renewable exclusive right to use that mark for the goods or services listed in your application. The DoI issues a Schedule 2(c) certificate, and your ownership is published in the Industrial Property Bulletin. That certificate is your proof — no one else in Nepal can legally use a confusingly similar mark for the same NICE class without your permission.

What exactly is an unregistered trademark?

An unregistered trademark is any mark you use in trade — a restaurant name, a clothing label, a skincare brand — that you have never filed with the DoI. You might have built real customer recognition. You might have used it for years. But under Nepal's first-to-file system, that use does not create legal ownership of the mark itself. The PDTA does not grant an unregistered user any statutory right. Your only legal shield is a common-law action for passing off, which exists outside the Act and is recognised through court precedent, not through the DoI's registration machinery.

Why does the difference matter so much in Nepal?

The difference matters because Nepal is strictly first-to-file. If someone else files your brand name before you do — even if they have never sold a single product under it — they become the legal owner. You could lose the right to use your own brand. A registered owner can file a DoI opposition against your later application, demand you stop using the mark, and even claim damages. This isn't a theoretical risk. We have seen businesses build a reputation for two or three years, only to discover a competitor registered their name and now holds the certificate. Reversing that is extremely difficult and expensive.

How does first-to-file work in Nepal?

First-to-file means the Department of Industry awards trademark rights to whoever submits a valid, complete application first — not to whoever used the mark first in the market. The DoI examiner checks for conflicts against existing registered or pending marks during examination. They do not check who was using what in a shop in New Road or Boudha. If your unregistered brand name does not appear in the DoI database, it is invisible to the examiner. A clean search report from the trademark database is your best early-warning signal. Once a certificate issues, the registered owner's priority date locks in, and the unregistered prior user is left with only a passing-off lawsuit — which is not a DoI proceeding but a full civil court case.

What legal protection does a registered trademark give you?

A registered trademark gives you concrete, enforceable rights under the PDTA 1965. Here is what you actually get:

• Exclusive right to use the mark for the registered NICE class(es) — no one else can use an identical or confusingly similar mark for the same goods or services.
• Right to file an opposition at the DoI within the 90-day publication window if someone else applies for a conflicting mark.
• Right to sue for infringement under the Act — a statutory claim, not a common-law one — which is faster and clearer than passing off.
• Right to license or assign the mark to another party, with the transfer recorded at the DoI.
• Right to use the ® symbol, which signals ownership and deters potential copycats.
• A 7-year renewable term — you can renew indefinitely in 7-year blocks under Sec. 23B.

What can you do with an unregistered mark? Only passing off

Your sole legal remedy for an unregistered mark in Nepal is a passing-off action. Passing off is a judge-made doctrine — you sue in civil court, not at the DoI. To win, you must prove three things simultaneously: that your mark has acquired sufficient reputation or goodwill in Nepal, that the defendant misrepresented their goods or services as yours, and that this misrepresentation caused you actual damage. All three elements are your burden. There is no presumption in your favour, no DoI certificate to wave, and no fixed timeline. These cases can drag on for years. Most small businesses simply cannot afford to fight one.

Registered vs unregistered trademark: a side-by-side comparison

How do you register a trademark in Nepal?

The registration process at the Department of Industry turns your unregistered mark into a legally protected asset. Here are the five stages:

1. Search the DoI database. Before you invest in branding, check whether your proposed mark — or something confusingly close — already exists. You can run a search on the trademark database or have our team do it for you.
2. Identify the correct NICE class. Nepal uses the 45-class NICE Classification. One application covers one class. A restaurant typically files in Class 43; a clothing brand in Class 25. Pick the wrong class and your registration protects nothing useful.
3. File the application. Submit the Schedule 1(c) form with four specimens of the mark, a notarised Power of Attorney, and the required documents to the DoI.
4. Respond to examination and publication. The DoI examines the mark for distinctiveness and conflicts. If cleared, it is published in the Industrial Property Bulletin for a 90-day opposition period.
5. Receive your certificate. If no opposition is filed — or if any opposition is resolved in your favour — you pay the registration fee and receive the Schedule 2(c) registration certificate.

What documents do you need to file?

A domestic applicant needs the application form, a notarised Power of Attorney signed and attested by two witnesses, a board resolution of the company (if a company), four specimens of the mark, and a certificate of industry along with the latest tax clearance letter. Foreign applicants must also submit a notarised copy of their home registration certificate in English. The documents must be complete and correctly notarised — the DoI rejects incomplete filings, and every resubmission adds weeks to your timeline. Our team at IP Sewa can help you prepare the application package correctly the first time — reach out here.

How long does registration take, and what does it cost?

A straightforward, unopposed trademark registration in Nepal typically takes about 12 to 14 months from filing to certificate. In the smoothest cases it can finish in 6 to 8 months, but that is the favourable end, not the norm. The total cost has two components: government fees set by the DoI (which follow a per-class structure — one application, one class), and professional service fees for search, classification, document preparation, and handling the filing. Because costs change and depend on the number of classes, use our trademark fee calculator to get a current breakdown, or contact us for a personalised estimate.

A real-world Nepal example: the unregistered café

Imagine a couple opens a specialty coffee shop in Jhamsikhel called "Himal Bean" and builds a loyal following over two years. They print cups, put up signage, and run Instagram ads — but never file a trademark application. A larger chain notices the name, runs a DoI search, finds it unregistered, and files "Himal Bean" in Class 43 for café services. The chain gets the certificate. Now the original couple cannot stop the chain from opening a "Himal Bean" in the same neighbourhood — and worse, the chain can demand they rebrand. Their only option is a passing-off suit, which requires proving their reputation, the chain's misrepresentation, and financial damage, all while paying legal fees and watching their brand identity hang in the balance. Registration would have cost a fraction of that fight.

Common mistakes that leave your brand unprotected

A mistake we see often: business owners assume that registering a company name at the Office of the Company Registrar protects their brand. It does not. A company registration and a trademark registration are completely separate. The OCR checks whether a company name is available for incorporation — it does not grant trademark rights. Another common error is using the ® symbol on an unregistered mark. Under Sec. 18B of the PDTA, falsely claiming a mark is registered is an offence. Stick to ™ until the DoI issues your certificate. Finally, some businesses register in the wrong NICE class — a clothing brand filing in Class 35 (retail services) instead of Class 25 (clothing) gets almost no real protection for its actual products.

In short

Registering your trademark in Nepal is not a formality — it is the single act that creates your legal right to the brand you are building. An unregistered mark leaves you exposed. A registered one gives you a DoI certificate, a 7-year renewable term, the right to oppose conflicting applications, and a clear path to stop copycats. In a first-to-file country, filing first is everything. If you are serious about your brand, search the trademark database now to see whether your mark is still available, or start your registration before someone else does.

People also search for

• How to register a trademark in Nepal
• How much does trademark registration cost in Nepal
• How long does trademark registration take in Nepal
• How to protect a business name in Nepal
• Brand protection checklist for new businesses in Nepal
• What is the NICE classification for trademarks
• How to protect intellectual property in Nepal