Published on 16th August 2025
Authored By: Sampada Neupane
National Law College, Tribhuvan University
Abstract
Design protection is a fundamental component of intellectual property rights, essential for promoting creativity, industrial innovation, and economic growth. In Nepal, however, the legal and institutional mechanisms governing industrial designs under the Patent, Design, and Trademark Act, 2022 B.S. remain underdeveloped and underutilized. This article critically examines the scope and effectiveness of design protection in Nepal, identifying the legal, procedural, and institutional barriers that hinder its use. Drawing on comparative frameworks from jurisdictions such as India and the European Union, the paper argues that the marginalization of design rights undermines Nepal’s creative industries and weakens its IP ecosystem. Finally, the article offers practical recommendations for Nepal.
Introduction
An industrial design constitutes the ornamental or aesthetic aspect of an article. It may consist of three-dimensional features, such as the shape of an article, or two-dimensional features, such as patterns, lines, or colors.[1] These visual characteristics, although non-functional, are central to consumer perception and product appeal in the modern markets. The significance of industrial design extends beyond appearance, it serves as a strategic asset for businesses by distinguishing products, enhancing brand identity, and attracting consumer preference across various sectors including fashion, manufacturing, handicrafts, and packaging.[2]
Industrial designs, when protected by intellectual property law, grant creators the exclusive rights that encourage innovation and reward investment in design-led development. Globally, jurisdictions have increasingly acknowledged the economic and cultural value of design protection. However, in Nepal, the legal and institutional framework for design protection remains underdeveloped and underutilized.[3] The Patent, Design and Trademark (hereinafter; PDT) Act, 2022 B.S. (1965 A.D.), which governs design rights, provides only a skeletal mechanism for registration and enforcement. It lacks critical components such as clarity on novelty standards, digital filing infrastructure, or enforcement mechanisms, elements that are now standard in comparative jurisdictions.
Despite the growing relevance of design protection in the context of globalization and creative entrepreneurship, Nepal sees only a limited number of design registrations annually, with minimal public awareness and virtually no judicial enforcement. [4]Registration, the sole means of securing exclusive design rights under Nepalese law, is often hampered by bureaucratic procedures, and outdated legal definitions.[5]
Legal Framework of Design Protection in Nepal
Definition, Scope, and Types of Designs
The legal foundation for design protection in Nepal is primarily embedded in the PDT Act, 2022 BS. Section 2(c) of the PDT Act defines a “design” as the form or shape given to any article by an industrial process or means, whether manual, mechanical, or chemical, which can be registered under the Act.[6] Although this definition identifies the industrial origin of the design and its association with shape or form, it is notably narrow and outdated by international standards. It does not explicitly encompass modern visual elements such as surface ornamentation, graphical interfaces, or digital designs. Moreover, the Act remains silent on design classifications and the types of protectable subject matter, which limits its adaptability to contemporary industries.[7]
International legal regimes tend to adopt a broader and more inclusive approach to industrial design protection. For instance, the TRIPS Agreement obliges member states to safeguard industrial designs that are independently created and either new or original. [8]Jurisdictions such as the European Union and India further refine this by categorizing designs to reflect advances in technology and creativity.
These categories include product designs (e.g., mobile phone casings), packaging designs (such as containers and labels), graphical user interfaces (like software layouts), and textile or fashion designs (including garment patterns and fabric aesthetics). This classification ensures more precise protection aligned with industry-specific innovations.[9]
By contrast, the Nepalese legal regime does not differentiate between these types. It lacks clarity on whether non-physical or digital designs such as GUIs and software-related displays are registrable.[10]This omission is critical in the context of digital transformation and the growing economic relevance of intangible design elements. The limited definition restricts innovation and excludes emerging sectors such as technology-based design, wearable devices, and e-commerce interfaces.
Registration Procedure
The responsibility for registering designs in Nepal lies with the Department of Industry (DOI) under the Ministry of Industry, Commerce and Supplies. While the PDT Act provides basic procedural steps, including the submission of an application with design drawings or models, the overall system is highly bureaucratic and lacks procedural sophistication. [11]The application process remains predominantly manual with minimal digitization, limiting accessibility for applicants, especially those outside Kathmandu or international innovators. There are no standardized guidelines outlining examination procedures, timelines, or grounds for refusal.[12]
In practice, the DOI suffers from a shortage of technically trained personnel capable of evaluating the novelty and originality of submitted designs. Moreover, design databases are not publicly searchable, which prevents effective prior art searches and increases the likelihood of duplicate or frivolous registrations. These gaps create uncertainty, reduce investor confidence, and ultimately discourage the utilization of the design registration system. For comparison, countries like India have implemented online filing, examination protocols, and searchable design databases to streamline access and promote transparency.[13]
Enforcement and Remedies
The enforcement of design rights in Nepal remains weak and underdeveloped. While the PDT Act provides for civil remedies in cases of infringement such as injunctions, seizure of infringing goods, and damages, these provisions are rarely invoked in practice. Judicial delay, lack of awareness among rights holders, and the absence of specialized intellectual property tribunals are key impediments to effective enforcement. Courts often lack the technical expertise to assess design infringement claims, and the general legal community remains insufficiently trained in industrial design jurisprudence.
Challenges in the Current System
Despite the existence of a statutory framework for industrial design protection in Nepal, the practical implementation of the system remains weak and underdeveloped. The combination of legal, institutional, and socio-economic barriers significantly limits the efficacy of design rights in fostering creativity, promoting fair competition, and contributing to economic development.
Low Public Awareness and Utilization
One of the most pressing issues is the low level of public awareness and engagement with the design registration system, especially among micro, small, and medium-sized enterprises (MSMEs), independent designers, artisans, and creators.[14] Many stakeholders in creative industries remain unaware of the existence of industrial design protection or misunderstand its purpose and value. As a result, very few design applications are filed annually.[15]The lack of structured outreach programs by the Department of Industry (DOI) further compounds the problem. Unlike patent or copyright regimes, which receive occasional media or academic attention, industrial design protection in Nepal remains largely invisible to the public.
In countries such as India, public campaigns, and institutional support programs like the Intellectual Property Facilitation Centers (IPFCs) and Start-Up India initiatives have been pivotal in promoting design awareness. [16]Nepal, in contrast, lacks dedicated IP advisory centers or incentives for MSMEs to register their creations. Consequently, creative entrepreneurs often forgo registration or fail to assert their rights due to lack of understanding, limited resources, or bureaucratic hurdles. [17]
Outdated Legislative Framework
The PDT Act, 2022 B.S. (1965 A.D.) has not undergone significant revision since its enactment. As a result, the legislation fails to align with modern international standards, particularly those established by the TRIPS Agreement.[18] Notably, the Act lacks clear definitions of “novelty” and “distinctiveness,” and does not provide exclusions from protection for designs dictated solely by technical function, features necessary to achieve a technical result, or designs contrary to public morality or order. [19]These are fundamental principles in comparative design law frameworks, such as India’s Designs Act, 2000, and EU Regulation No. 6/2002.[20]
The absence of such provisions in Nepal’s law creates ambiguity and restricts examiners from applying clear and consistent criteria when assessing design applications. Moreover, it opens the door to overbroad or invalid registrations and undermines legal certainty for designers, competitors, and investors alike.
Institutional Weaknesses
The DOI, tasked with administering the design registration process, suffers from severe institutional capacity deficits. It lacks adequate technical staff, including trained examiners specialized in design law, and is constrained by outdated infrastructure.[21] There is no publicly accessible design database or searchable registry, and applicants cannot verify prior registrations or check for conflicts. Additionally, decisions by the DOI regarding acceptance or refusal of applications are rarely published, making it impossible for applicants to understand the reasoning behind outcomes.
These deficiencies hinder transparency, legal predictability, and administrative efficiency. In comparison, jurisdictions like the United Kingdom, India, and the European Union provide digital platforms that enable full electronic filing, search, and examination processes. Nepal’s absence of digital tools and procedural guidelines makes the registration process costly, uncertain, and time-consuming for applicants.
Absence of Judicial and Administrative Precedents
Another significant obstacle to effective design protection in Nepal is the absence of judicial interpretation and precedent. Courts have limited experience in adjudicating industrial design disputes and often lack the necessary technical and legal understanding to interpret visual and functional aspects of designs.
Further, Nepal does not have specialized intellectual property benches or tribunals, which are considered essential in many jurisdictions to adjudicate IP disputes effectively. [22]In the absence of jurisprudence or administrative decisions, right holders are left without guidance on enforcement strategies or legal standards, contributing to widespread uncertainty.
Comparative Perspectives
India
India’s legal framework for industrial design protection is governed by the Designs Act, 2000, which modernized the country’s previous design law to ensure compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).[23] Section 2(d) of the Act defines a “design” as the features of shape, configuration, pattern, ornament, or composition of lines or colors applied to any article by an industrial process that appeals to the eye.[24]This definition conforms to Article 25 of the TRIPS Agreement, which mandates protection for independently created designs that are new or original.[25]
The Indian regime provides a 10-year term of protection, which is extendable by an additional 5 years, thereby offering up to 15 years of exclusive rights to the design owner.[26] The Controller General of Patents, Designs and Trademarks (CGPDTM) manages the registration process through the Design Office headquartered in Kolkata. In contrast to Nepal’s manual and opaque system, India has implemented significant digitalization: applicants can file, track, and search design applications online, and the Design Journal is published weekly to ensure transparency and public access.[27]
The enforcement in India includes civil remedies such as injunctions and damages as well as criminal sanctions in cases involving willful infringement.[28] Moreover, India’s judiciary, particularly the High Courts of Delhi and Bombay, have developed a growing body of jurisprudence on design law, offering clarity on issues such as functionality, novelty, and deceptive similarity.[29] These factors contribute to a relatively efficient and predictable enforcement environment.
European Union
The European Union (EU) offers one of the most sophisticated legal frameworks for design protection globally. The EU’s dual-tier system, governed by Council Regulation (EC) No. 6/2002, includes both Registered Community Designs (RCDs) and Unregistered Community Designs (UCDs). [30] RCDs provide up to 25 years of protection (renewable every 5 years), while UCDs offer automatic protection for 3 years from the date of first public disclosure.[31]
The European Union Intellectual Property Office (EUIPO) manages the registration of RCDs. Its procedures are highly digitized and efficient, offering swift examination, clear classification systems, and a transparent online database of registered designs.[32] The availability of UCDs provides additional flexibility to designers, particularly in fast-moving industries like fashion, where shorter market cycles prevail.
EU design law is tightly integrated with customs enforcement mechanisms under Regulation (EU) No. 608/2013, which allows customs authorities to seize infringing goods at the border. [33]Moreover, the Court of Justice of the European Union (CJEU) has delivered important rulings that interpret the scope, originality, and infringement standards for design rights, contributing to a coherent body of legal precedent[34]. This institutional and jurisprudential maturity enhances legal certainty for rights holders and potential infringers alike.
Lessons and Recommendations for Nepal
Nepal can adopt key features from these systems: digitalization of registration, clearer legislative definitions, publication of design applications, and public access to databases. Institutional training and specialized IP benches in courts can also improve enforcement.
The PTD Act, in its current form, fails to define key concepts such as novelty, originality, and non-functionality in accordance with global norms. A revised legislative framework should include these definitions, introduce provisions for the protection of partial designs and graphical user interfaces (GUIs), and clearly outline exclusions based on public morality or functionality. Moreover, enforcement provisions must be strengthened by introducing a dedicated chapter detailing civil and administrative remedies, procedural safeguards, and statutory timelines for dispute resolution. These amendments would not only improve the legal clarity of design protection but also foster greater trust in the system among domestic creators and foreign investors.
The Department of Industry (DOI), currently responsible for design registration, must be equipped with both human and technological resources. Investment in IT infrastructure would enable the creation of a digital platform for filing, examination, and publication of designs, supported by a publicly accessible online database. This would reduce administrative bottlenecks and improve transparency.
Raising public awareness is another critical component of a successful design protection regime. A large segment of the creative economy in Nepal, particularly small and medium-sized enterprises (SMEs) in sectors such as handicrafts, textiles, furniture, and packaging, remains unaware of the benefits and procedures associated with design registration. Government agencies should partner with industry associations, academic institutions, and non-governmental organizations to conduct targeted outreach and education campaigns.
Finally, the effectiveness of design protection depends on the ability of the legal system to enforce rights in a timely and predictable manner. Judicial reform is thus indispensable. Judges, lawyers, and law enforcement officers must be provided with specialized training on the interpretation and enforcement of design rights, including the assessment of infringement and the application of available remedies.
References
[1] World Intellectual Property Organization (WIPO), Understanding Industrial Property 10 (2016), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_895_2016.pdf.
[2] Id.
[3] Mr Satya & Narayan Pakka, Industrial Design and its Registration System in Nepal, https://ipnepal.com/wp-content/uploads/Design-and-its-Registration-System-in-Nepal.pdf (last visited June 16, 2025).
[4] Id.
[5] Patent, Design and Trademark Act, 2022 (1965) (Nepal).
[6] Patent, Design and Trademark Act, 2022 (1965) § 2(c) (Nepal).
[7] Design and Its Registration System in Nepal, supra note 3 at 2.
[8] Agreement on Trade-Related Aspects of Intellectual Property Rights arts. 25–26, Apr. 15, 1994, 1869 U.N.T.S. 299
[9] The Designs Act, No. 16 of 2000, § 2(d) (India); Council Regulation 6/2002, art. 3(a), 2002 O.J. (L 3) 1 (EC).
[10] Id at 2.
[11] Id. at 4.
[12] PTD Act § 23.
[13] India Office of the Controller General of Patents, Designs and Trademarks, Designs Application Filing, https://ipindia.gov.in/designs.htm (last visited June 18, 2025).
[14] Design and Its Registration System in Nepal, supra note 3 at 6.
[15] Id.
[16] Intellectual Property India, IPFC Scheme, https://ipindia.gov.in/ipfc (last visited June 18, 2025).
[17] Design and Its Registration System in Nepal, supra note 3, at 7.
[18] Agreement on Trade-Related Aspects of Intellectual Property Rights art. 25, Apr. 15, 1994, 1869 U.N.T.S. 299.
[19] PTD Act § 18 (Nepal); Design and Its Registration System in Nepal, supra note 3, at 8.
[20] The Designs Act, No. 16 of 2000, §§ 4–6 (India); Council Regulation 6/2002, art. 8, 2002 O.J. (L 3) 1 (EC).
[21] Design and Its Registration System in Nepal, supra note 3, at 8–9.
[22] WIPO, Case Study on Specialized IP Courts in Asia, WIPO Doc. No. WIPO/IP/JU/SEO/09 (2009), https://www.wipo.int/edocs/mdocs/aspac/en/wipo_ip_ju_seo_09/wipo_ip_ju_seo_09_www_129538.pdf.
[23] The Designs Act, No. 16 of 2000, Preamble (India).
[24] Id. § 2(d).
[25] Agreement on Trade-Related Aspects of Intellectual Property Rights art. 25, Apr. 15, 1994, 1869 U.N.T.S. 299.
[26] Designs Act, supra note 1, § 11.
[27] Intellectual Property India, Designs, https://ipindia.gov.in/design.htm (last visited June 18, 2025).
[28] Id.
[29] Micol K. and Sharma R., Case Studies in Indian Design Law, 12 Indian J. Intell. Prop. L. 45 (2022).
[30] Council Regulation 6/2002, 2002 O.J. (L 3) 1 (EC).
[31] Id. arts. 11–12.
[32] EUIPO, Design Search, https://euipo.europa.eu/design-search (last visited June 18, 2025).
[33] Regulation (EU) No. 608/2013, 2013 O.J. (L 181) 15.
[34] Case C-281/10, PepsiCo Inc. v. Grupo Promer Mon Graphic SA, ECLI:EU:C:2011:679 (CJEU).
