The Own Name Defence in Nepal: Using Your Name Without Infringing
The own name defence in Nepalese trademark practice: when trading under your personal or company name is honest use, when it infringes, and how the line is argued.
'But it's my own name' is the most instinctive defence in trademark disputes — and one of the least understood in Nepal. A shopkeeper named Sharma opens 'Sharma Electronics'; years later a registered SHARMA mark arrives in the same trade. Is he infringing?
The honest answer in Nepalese practice is: sometimes not — and the difference between 'not' and 'yes' is how the name is used, in good faith, for what it says about the trader rather than for what it borrows from the mark.
In short
The own name defence in Nepal protects a trader who uses their genuine personal or company name in good faith — descriptively, to identify themselves — not a trader who adopts the name to ride a registered mark's reputation. Nepalese practice weighs it like other similarity defences: whose use came first in the market, whether the name is used as a trademark (prominently, as a badge of origin) or merely as identification, and whether consumers would be confused. In a first-to-file system the defence is a shield, not a priority right: an earlier registration still constrains aggressive branding, and personal-name conflicts are argued on evidence, not sentiment.
What the defence actually covers
The defence protects identity, not positioning. It answers the question every similarity dispute asks — would a consumer briefly hearing both names plausibly mix them up? — with identity context: the name tells the truth about who is trading, which is the opposite of what an infringing mark does.
| Use | Typical treatment | Why |
|---|---|---|
| 'Sharma Electronics' on a Sharma's own shop | Honest use — strong defence | Identifies the trader, not borrowed goodwill |
| Same shop, but styled to mimic a famous SHARMA mark | Vulnerable | The styling, not the name, carries the confusion |
| 'Sharma & Sons' adopted after the mark registered, in the same goods | Weak — motive questioned | Adoption timing undercuts good faith |
| A descriptive surname used in an unrelated trade | Usually uncontroversial | Different goods, no confusion to answer |
The three factors Nepalese practice weighs
Good faith at adoption. Did the trader use their genuine name before the conflict existed, or adopt it after the mark became prominent? Adoption timing is documentable — company registration dates, licence records, dated signage and invoices — and it is the factor the paper trail decides. Use as a mark vs. use as identification. A name used prominently as the badge of origin — the logo, the headline, the advertising hook — behaves like a trademark; the same name used to state who runs the shop is descriptive. The more the usage mimics branding, the less the defence covers it. Confusion on the whole. Even an honest name is weighed against the registered mark across the usual axes — visual, phonetic, conceptual — and against the goods and trade channels involved.
The first-to-file reality behind the defence
Nepal's register gives no use-based priority: a business that has traded for years on an unregistered name generally holds a weaker position than an earlier filer. That is why the own name defence matters most in two situations — resisting an overreaching claim, and opposing a later application that would criminalise an existing honest trader — and matters least as a licence to expand. A trader defending their name should also be registering it: the defence protects what exists; the registration is what grows.
Personal-name conflicts arrive by predictable routes — oppositions against family-name applications, DOI complaints, cease-and-desist letters — and the site's guide to personal-name oppositions covers the register side. The evidence kit is the same either way: proof the name is genuinely yours, proof of when your use began, and proof of how you use it.
For family-name brands before any dispute
- Pair the name with something distinctive — 'Sharma' alone is shared; 'Sharma' plus a distinctive second element or a strong device is protectable
- Screen before adoption — check the register for existing family-name marks in your classes, in both scripts, before the signage order
- Register early — the honest-use defence never grows a business; the registration does
- Date everything — company registration, licences, invoices and signage photos from day one are the file any future dispute will consume
- Keep the use honest — brand the distinctive pairing prominently; use the bare family name only as identification
Building the defence file
Prove the name is yours
Citizenship or company documents showing the genuine name — the foundation the defence stands on.
Date your use
Company registration, municipality licences, tax records, dated invoices and photographs — anything establishing that honest use began before, or independent of, the mark.
Show how you use it
Signage, packaging and advertising showing the name used as identification, not as a clone of the registered mark's styling. Where the comparison exhibit must be answered, answer it with your own exhibits.
Want this handled for your brand?
IP Watch monitors new trademark publications in Nepal and alerts you to potentially conflicting marks — with the context needed to review them.
This article is general information, not legal advice.