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pilawturkey · 20 days ago

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Fintech Consultancy in Turkey

FinTech consultancy paves the way for a progressive change in terms of banking, technology and digitalization. An efficient FinTech consultancy will provide the compliance of FinTech-led engagements with national and international law-centric standards and rules. That will directly increase legalized integration of FinTech ecosystem into daily banking.

What is the meaning of FinTech?

The term “FinTech” describes emerging electronic payment methodologies based on the automation and facilitation of payment systems. The word FinTech contains a broad form of money transfer models such as electronic money institutions, payment institutions, digital banks, online insurance agencies, and crowdfunding platforms. The term of “Financial Technology (FinTech)” is used to refer to integration of technology into the exchange of goods and services. FinTech, dedicated to the development of faster and better delivery of financial services, is very different in many ways from traditional financial services.

What is the main objective of Turkish FinTech ecosystem?

The main objective of FinTech ecosystem is to facilitate and accelerate shopping and trade. There are several advantages of alternative virtual payment methods. There is a growing agreement that FinTech will play a substantial role in the payment ecosystems across the world. By virtue of those benefits, as of February 2023, 739 FinTech-led companies have been formed in Turkey according to recent studies by the Presidency of Republic of Turkey as a part of Turkish FinTech ecosystems. That displays the growing impact of FinTech Turkey.

What are main challenges of Turkish FinTech ecosystem?

The usage of FinTech presents a broad range of challenges especially where it touches on the use of crypto-currencies such as bitcoin. The invention of digital money and digital payment services platforms have newly caused severe problems in capital markets.

Data privacy and the protection of personal information has been a matter of concern in the field of FinTech intellectual property. Data privacy implies the right to make any decision on when, how and to what extent personal and|private information can be communicated to outsiders. Generally speaking, the collection, processing, the supervision, and protection of the confidentiality of personal data are guaranteed by domestic legislation across jurisdictions. The right to data privacy is recognized to cover a broad range of rights including the right to access to their data, a right to portability, a right to be forgotten, and a right to share or not.

For more discussion about data privacy take a look at our article on the Right to Data Privacy and Respect for Private Life

FinTech ecosystem is particularly used for banking and FinTech restructuring services. For more discussion for banking and finance, take a look at our article on Banking and Finance Law in Turkey

What is the most recent developments for the 2024 Turkish crypto business environment?

Regulatory ecosystem has been improved step by step by Turkish policy and law makers. Such revisions will pave the way for adaptation of Turkish legal and operational structure with blockchain. In this context, it is notable that the digital participation banking system is accepted by Turkish lawmakers in Turkey.

As a second step, the recognition of digital wallets was completed through new regulation of the Central Bank of the Republic of Türkiye. In this way, a Digital Wallet Era in Turkey was started in Turkey.

As a third step, we should take into account new facilitating step for Capital Markets system. Indeed, the 2024 New Electronic Submission System for Turkish Capital Markets was instituted by the Capital Markets Board of Türkiye.

It is critical to note that Turkey accepted its commitment of the full compliance of the emerging capital markets system in line with the Financial Task Force benchmarks dedicated to the prevention of money laundering and terrorist financing. In line with the FATH principles, as a fourth step, the Law Numbered 7518 on Amendments to the Capital Markets Law Numbered 6362 has been enacted. The Law Numbered 7518 is named as Crypto Law of Turkey and entered into force following its publication in the Official Gazette dated July 2, 2024.

Take a look at our up-to-date article on the 2024 FATF Decision on Turkey

Turkish Capital Markets Board is granted a wide margin of appreciation to govern newly-born blockchain system in Turkey. In this context, fiftly, the first decision on the 2024 Announcement for the Rejected Crypto Asset Platforms was delivered by the Board dated 23 August 2024.

Last but not least, the Resolution by Turkish Capital Markets dated 19 September 2024 was published particularly in relation to the legal status of NFTs and P2Ps in Turkey. The Resolution in question explains the meaning of Non-Fungible Tokens [NFTs] [nitelikli fikri tapu in Turkish] as “crypto assets that will be used to record the representation and ownership of digital assets, a non-replicable and unique nature”. When it comes to Peer to Peer [P2P] [eşler arası in Turkish], it is used to refer to digital marketplaces allowing the buying, selling and exchanging of crypto assets directly between direct|main users.The same Resolution also identifies the standards for the accounts to be opened in the name of customers under Article 35/C. Any account to be opened in the name of customers cannot be used for purposes other than their intended purpose. Additionally, customer cash cannot be received by the platforms, cannot be delivered to the customer by hand and cannot be stored in any way with the platforms.

Which authorities are competent for Turkish FinTech ecosystem?

The Banking Regulation and Supervision Agency is granted an authority to ensure the compliance of the banking activities in line with the Banking Law and other applicable regulations. According to Article 93 of the Banking Law, the Agency is granted certain powers and duties for the implementation of the Banking Law.

Secondly, the Turkish Revenue Administration carries out certain duties dedicated to regulating payment systems.

Thirdly, the Personal Data Protection Authority, engaging in the protection of personal data processing in line with internationally recognized human rights standards.

Besides, the Payment and Electronic Money Institutions Association carries out a broad range of duties in Turkey under Article 1 of the Law Numbered 6493.

With regard to the design and implementation of FinTech norms applicable in Turkey, take a look at our article on FinTech Guide in Turkey.

What is the role of FinTech consultancy services?

Innovative approach needs to be improved in order to handle current legal challenges regarding FinTech. FinTech consulting firms must be good at producing FinTech legal guidance.

Pi Legal Consultancy provides comprehensive guidance to global digital leaders, companies, business owners and consumers for particularly risky sides of Turkish FinTech ecosystem. Our FinTech legal and business consultants focus on understanding and using specialized software instruments through computers and smartphones.

Our FinTech consultancy service assists our clients particularly in the following areas of expertise:

Electronic money (e-money) and cryptocurrencies, digital foreign exchange platforms,

Digital (participation) banking, electronic payment or loan services,

Data protection and privacy, information security,

The prevention of money laundering,

The prevention of cybercrimes,

Electronic commerce and online shopping,

The protection of the right to copyright and intellectual property.

#fintech #investment #bankinglaw #banking #turkey #lawyer #istanbul #ankara #financial #companies #economy #business

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pebblysand · 1 month ago

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for @nosebleedclub october prompt #11 - "lawyer's office". i did write this yesterday, just horribly later posting ^^. .

lawyer’s office

They fill up the room that morning, the way young people always do. Hands shoved deep inside the pockets of washed out, baggy jeans, long torsos awkwardly hunched forwards, cotton jumpers with uneven strings peeking out at the base of their sternums and hoods thrown back like inverted necklaces around their shoulders. T-shirts with large logos and GAA colours. There is a pile of crumpled bank notes tossed against the scratched, ageing mahogany desk in front of them, hazardously left to die between the three-inch-thick Sweeney file and a copy of last year’s edition of Blackstone’s Civil Practice. They have emptied the full contents of their wallets, including the packaged condom one of them hastily hid back within the folds, a loud cough turning his cheeks red like a sleety, winter day.

‘That enough?’ Liam finally dares to ask. ‘We counted it up, should be about 120 -’

They can sit down, start at the beginning. The money will be a problem for later.

‘Well, it’s our landlord,’ another boy starts. He is short and broad, the nose of a boxer.

‘Yeah, he’s a cunt -’

‘Ah, stop -’

‘Alright, yeah. I’m just saying. So.’

It’s a house-share. Cabra, up in Dublin 7, six people crammed into the old bones of a brick-layered former two-up-two-down. There is an ageing extension, one that’s falling apart, and the foxes eat the mice in the back garden at night. ‘Now, your man, right? The one on the second? Well, he broke the floor of his ensuite shower, we’re not sure how, but -’

‘Probably shagging that girl who’s been - you know the one with the -’ another bearded one interrupts, miming large half-circles over his chest -

Liam shoots him a look. This is not the right place. In the silence that follows, he takes over from Shorty - his voice is softer and more cautious. Embarrassed to be here, almost. ‘Well, anyway. He’s not paying his end of the rent, so our landlord won’t fix it. Until he pays, right? But then every time he showers - well. It, like, proper rains in our sitting room, so -’ He smiles a little, shy. There is a moment of collective contemplation at the difficulty of this conundrum, at the relative guilt of consulting a lawyer behind the other one’s back, too. There’s probably a reason he’s not paying rent. Liam further adds that he tried to talk to their landlord, threatened him with going to the PRTB, but got laughed at in response. ‘Said he’d kick us out to do the renovation works. Fix the shower, then find twenty Brazilians willing to sleep on bunk beds and fill up the place, €500 a head, you know? So, I suppose we were wondering if -’

The young lad eyes the money again, nodding at it like it’ll respond. When he looks up, his gaze is pleading. ‘Anyway, we were hoping you could, you know, write a letter or something?’

A law degree is the right to use big words on expensive stationery.

Liam’s been here before, of course. He is familiar with the décor, the exhausted shelves that line the walls, the yellow glow of a banker’s lamp on winter afternoons, when the sky is too dark outside and the rain lashes against the windows. There is a faux-persian rug that frames the centre of the office and the lawyer replaced it once, back in the day. Perhaps, because of the old English setter that used to sleep in the corner and scratched it, and scratched it, and probably peed on it too many times. Perhaps, because of the dark stains that cups of tea and coffee had made over the years, or because of the vomit of a baby. This isn’t the kind of general practice that facilitates yearly visits by tracking heights or flu shots, but it is still the kind of general practice that watches people grow. Decades apart sometimes, the space in which they all happily go on to live their lives, but Liam’s crawled on the floorboards during appointments before, and as a teenager, he played on his tablet with his headphones blasting in the waiting room, dragged by parents who were worried sick, and often didn’t know what else to do with him.

The first time he attends, he isn’t even born yet. Playing football against her ribs under the soft curve of a rounding belly - she is a beautiful young woman, Louise. The brightest, kindest of blue eyes - pale skin and warm freckles on her skin, long blond hair that is definitely bleached but sure, you can’t have everything. She works as a secretary in an office - it is the early 2000s so probably pharma or tech or something - they don’t call her a secretary, she says, but an assistant. Her mother likes it. ‘Not that it’s any different,’ she corrects, polite and a bit shy, her fingers crossing over her stomach. She is small and thin, a stark contrast with the baby she carries. ‘It pays well, right?’

She wants it to stop, though. Wants to know if they can sack her if she says something to HR. ‘The other girls won’t talk,’ she adds, rolling her eyes. ‘I mean he’s doing it to all of us. It’s not just me.’ There were the comments and the jokes and the ‘accidental’ gropes - he even tried to force himself on her in his office once, kissed her and shoved his fingers inside her pants. She was too scared to do anything - thank God his boss knocked, interrupted, she caveats again, shaking her head quickly at the memory. Since then, she’s managed to avoid him. ‘He won’t look at me now, anyway,’ she shrugs, smiling and caressing her belly again. ‘Not with the baby.’

She wants to make sure she’s protected. It’s what her friend told her, that they couldn’t let her go until she’s back from mat leave. ‘He won’t even have us close the office on our own, says there needs to be a man present at all times to supervise, that we’re not capable.’ Louise bats her eyelashes quickly and blows her nose into a tissue. ‘Oh, you’re very kind. I don’t think there’s a need to go to the guards for that, honestly.’ Her mouth forms a laugh but no sound comes out. It may very well be a criminal offence, but getting the police involved? It’s not like her, and they have much more important things to deal with, surely. He’s just an arsehole. ‘I suppose I don’t want it to start up again when I’m back though,’ she sighs. ‘And, for the others, you know?’

She answers questions carefully, dutifully. She has the facts down and has made note of the dates and of the emails, and yes, she thinks there may be CCTV in the corridors, at least. She doesn’t know what the retention period is. And, no, she has not told her husband about this. ‘He’d just be raging. Can it stay between us, please?’

She has a charming smile, Louise. And a law degree, sometimes, pays for the welcome sound of silence rather than that of the advice.

He is injured when she reappears, a few years later. It is 2004 or 2005, by then, and he is hoisting himself up the stairs on crutches out on Merrion Square. She is holding the door open, politely shaking hands, and yes, she is still working at that same job, she confirms, chit-chatting as he labours up. This isn’t the right time or the right place to ask what happened with HR and it turns out that a lawyer’s office is rarely one of finished stories. Moments in life are stacked like bricks, like files on shelves, and the spines list client numbers rather than names, themselves always a secret.

She is crying proper, this time around. Was so scared when the hospital called. Their son, Liam, is crawling on the floor now, bright red hair and freckles - four-years-old and vroom-vroom-cars-I’ve-a-blue-one-and-a-yellow-one-did-you-see-that? He pets the dog, slow and gentle - Charlie’s an old man, you know? Darren almost died, Louise explains. She speaks low and covers her mouth, constantly throwing looks back at the floor behind her shoulder, trying to convince herself that her son isn’t listening to them. Darren, on the other hand, is silent and mellow. He looks down, uncomfortable on the faux-leather upholstery of the chairs that face the desk. His legs extend, then retract - once, twice. He massages his knee. He does construction, he explains in a grunt. A wall fell on top of him. He’s fine. ‘Stop it,’ Louise snaps. The doctors weren’t even sure he’d walk.

They’re saying it’s his fault, now, though. The company. They’re saying he wasn’t wearing the proper equipment. ‘No one does. It’s a joke,’ he groans. They just don’t want to pay.

There are norms specific to personal injury in those types of circumstances, apparently. A question to answer as to the burden of proof, too. Do they even have proof? And: do they have to prove Darren wasn’t wearing the equipment, or does he have to prove that he was? It’s probably lost somewhere within endless volumes of workers’ regulations. In terms of public policy, it’s hopefully the former. It would make sense. That could be looked up.

‘Well, we don’t want to burden you too much,’ Louise smiles, sniffling. She is holding her husband’s hand like a lifeline and he is stiff in his posture. They don’t have the money to be too much of a burden, it turns out. They were doing so well, so much better than the generation before theirs. The boom of the Celtic Tiger years and a delusional belief in trickle-down economics - they had a nice house and a baby, and they were thinking of having a second, eventually. ‘I’m obviously still working,’ she adds, now, swallowing, ‘but Darren’s on benefits and with the mortgage…’

It’ll be okay. Something will be arranged. The trainee can have a look. If there’s something, a no-win-no-fee route is always a possibility. It is a route that will not be preferred by the short, balding man who comes in once a month to grumble at the office books and pick up VAT receipts, but maybe that man was just born sad, who knows? The conveyancing side pays well, people down in Sandymount have too much money on their hands. Darren agrees. When he’s better, he’ll come back to incorporate his own business, maybe. He leaves smiling. She nods and sighs at the same time.

Go on, look after yourself, yeah? A law degree isn’t a medical one.

There was some money in the settlement. Not much but it covered the bills and the physio appointments, and Darren was able to pour the rest into the launch of Roddy’s Construction Ltd the moment the painkillers allowed him to stand up straight again. They couldn’t eternally survive on Louise’s salary and it gave him something to do other than sit on the couch, drinking cans and wallowing. They were happy for a bit, until 2008 rolled its ugly head around, that is. The equity became negative on everybody’s lips and within two years, Roddy’s Construction Ltd was forced out of existence. It was 2011 and their child was ten and in the lawyer’s office again, the clerk passed around an old Game Boy for him to wait. Louise’s tears were now dry as she signed the papers on the desk with a tight smile. ‘Well, I suppose at least this will allow us to keep the house a bit longer, right?’

Her mother died. Breast cancer, it turns out. There was €43,752 in the estate, which her brother in America is graciously letting her have in full. ‘He’s, er -’ Louise presses her lips together. Has aged a little, soft lines on her forehead and her hair cut to her shoulders. ‘They don’t need it,’ she states. ‘He and Lauren, they’ve - they’ve done quite well for themselves. Even with the crisis, it’s -’ She shakes her head again. There is a hint of irony and something else in her voice when she suggests: ‘Maybe I should have gone to America, do you think?’

Darren isn’t with her today. He didn’t believe it was necessary for him to attend anything past the funeral, and even that, he probably only attended because the notice on RIP.ie announced there would be a gathering at the pub afterwards. He has lots of friends there. The owner, in chief, maybe because her husband keeps the business running. Holds the walls with his presence, like a pillar on the stools at the bar. No, she’s being mean. He’s tried to take on a few odd jobs in a meat-packing factory near his parents’ in Drogheda a few months back. But: his knees are killing him and Louise says she feels guilty sometimes, with her functioning limbs and all the things she can’t understand; he is frying his brain cells with weed to make it stop. Maybe, oops, she shouldn’t have told the lawyer that. ‘I dunno how he pays for it,’ she lets out. ‘It is what it is, you know? Thanks, anyway. For the will and everything, I mean.’

She grabs her son’s Cars backpack off the floor by the entrance and they get a move on. With another tired smile, she closes the door behind her.

A law degree is the sigh that follows.

Liam is fourteen, now. They’ve left him outside again, though for once, this is ostensibly about him. Perhaps, he should be here. ‘You’ll talk to him, right?’ Louise pleads. ‘Please -’

‘What the fuck will the lawyer talk to him about?’ There is the voice of outrage in Darren again, his arms thrown up in the air. ‘I’m the one who should be giving him a fucking lecture, I’m his father -’

‘Yeah, and where the fuck were you? Countless times I tried to ring you -’

She was the one who had to get the bus to pick Liam up from the Garda station, last night. Their little baby boy. Got caught trying to nick a bunch of Canada Goose puffer jackets off a shop - the two older kids he was with were held up for the night. Liam being younger, though, and it being the first time - the guards weren’t stupid, for once. They called his parents rather than a judge, and -

‘I was fucking busy.’ Darren is defending himself. The best defence is always attack, that’s what they say anyway. ‘And, it’s you - you’re too kind to him. Always buying him shite he can’t pay for -’

‘He’s in school. He’s fourteen -’

‘Well, I worked when I was fourteen -’

‘Well, you certainly don’t work now -’

She is being unfair, he claims. He and his friend Darragh are opening up a new car repair shop down in Rialto. She easily clocks off at six from her cosy corporate gig every day, but he has things to do. Their son gets arrested for stealing now, and what’s next? She is too lax with him. That scene she made the one time (one time!) he dared yell at Liam. Boys need discipline. What’s next? Selling drugs?

‘Oh, and you wouldn’t want the competition in the house, would you?’

He storms out. Leaves her alone to silently cry again on the chair with the squeaky plastic leather that has scarred overtime. It’s okay. The officer on speakerphone echoing in the lawyer’s office confirmed they wouldn’t be pressing charges. There is no need for her to worry. She apologises. Shouldn’t have said that. Not here. She insists (insists, insists and promises) that Darren doesn’t sell drugs, she just said it like that. There is silence. Darren hasn’t been employed or had a successful venture in years. They’ve managed to keep the house. They’ve got a new car, a Mercedes that roared down the road when her husband took off just now. Neither he nor Darragh know how to fix cars, and everyone knows the kind of crowd that hangs around in Rialto. She works as a contractor for Facebook now, reviewing flagged content for days on end on a computer screen. It pays €24,000 a year. They required an undergraduate degree on the job posting, which she faked on her CV, and she’s been scared they would find out ever since.

A broken, teary smile as she reaches for the tissues on the desk again. She has calmed down. It’ll be alright. A law degree on the wall doesn’t turn an office into a police station. Actually, perhaps the opposite.

It is somewhat inevitable. It funds most of the small, general practices around the world, after all. She says: ‘It’ll be amicable.’ There is a pause. ‘I hope.’

Louise came alone this time. Liam is in school. She does not need the tissues, she is grand, thanks, jokes that she has grieved already. The lawyer’s office is the bearer of bad news: they will have to live separated for four years before the divorce is pronounced. Many people don’t know that, it’s an odd quirk in the law, the state finding it hard to cut off the many, winding tentacles the Catholic Church has wrapped around it for centuries. It sucks the blood out of people and families. Louise smiles. They at least got gay marriage last year, didn’t they?

Liam is living with her, she explains. They found a small one-bed in the Liberties. She sleeps on the sofa. ‘I’m applying to work for Facebook proper, now,’ she smiles. Hopefully it’ll pay more. ‘I love him,’ she explains. But she got married at nineteen and had the baby at twenty and didn’t think it would be this hard. ‘Maybe, didn’t think at all,’ she admits. ‘He’s a good kid. He was just a bit stupid for a while. Acting out. He’s been doing better since we left home, since it’s just the two of us. He doesn’t want to see Darren anymore, I -’

Her friends tell her it’ll be fine. She is thirty-five. She is still so young. There is irony in her voice again when she says: ‘Maybe I’ll meet someone, right?’ She doesn’t sound like she means it. She sounds like she wants to be left alone. She nervously toys with her wedding ring, still at the base of her finger. ‘I loved him,’ she declares, then. ‘I love him. I always felt that if I left, I was abandoning him. He changed. After the accident, you know? Or maybe I did. I can’t save him. He doesn’t want to be saved, I don’t think. D’you remember when we first came to you? When we bought the house back in 2000?’

It was an easy purchase and conveyancing is always a good way to rope new clients in. They got the lawyer’s address off of Darren’s sister, back then. The seller loved them. They made a good offer, had stable jobs and a decent interest rate. He worked in construction and she was an assistant. They’d found a property they liked in a gentrifying residential area in Drumcondra. He was from Kildare and she’d grown up in Meath. They’d met through friends in the city. Were just about to get married. Her ring was big and shiny and showy, even if it was just moissanite. He wanted people to know - see - that he loved her. He took her on a trip to New York that winter.

‘There’s someone else I think,’ Louise admits, then. Another pause. Her bright blue eyes look up again. ‘I don’t know. I don’t want to know.’ She shakes her head. ‘He is begging me to stay.’

She doesn’t. She gets herself a decent lawyer and she doesn’t stay.

Liam is nineteen now. His friends file out of the office in a concert of jokes and playful shoves, an army of bikes locked around the streetlamps outside.

His mam’s good, he nods, once. Moved out to Bray a couple years back and she likes it there. Has set up a small shop that sells artisanal jewellery and does the markets. He hasn’t seen his dad in a while, but on the phone he sounded alright. Got in a bit of trouble with the guards a few years back, but - ‘It is what it is, like.’ There is not much else to be said; this is watercooler conversation, not the real kind, and the lawyer’s office isn’t a doctor’s office, and it also not a therapist’s. The lawyer’s office focuses on Family law, Criminal Law, Employment Law Disputes, Personal Injury, Wills and Probate; it says so on the website. A law degree is not one that saves anyone, it’s just a prism through which to watch hundreds of lives go by.

Liam’s lips curve a little further to one side; he bites his lip with something daring in his gaze. ‘I’m doing law. In college, you know?’

And, perhaps, the landlord will fix the shower. At the very least, right?

#tw: sa #lawblr #writeblr #short story #original writing #original fiction #contemporary fiction #family drama #workplace harrassment #financial struggles #divorce #coming of age #irish fiction #emotional conflict #realistic fiction #lawyers #workplace injury #character-driven #slow burn

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corporate-advisors · 3 months ago

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Reliance Corporate Advisors (RCA) is a leading professional service firm in Nepal, offering legal services and financial advisory from top lawyers and Chartered Accountants.

INTELLECTUAL PROPERTY AND TRADEMARKS IN NEPAL: PASSING OFF

1. INTRODUCTION

1.1. A significant purpose of trademark registration is protection of your brand in a competitive marketplace whereby your registered trademark provides a unique and distinguished identity to your products or services.

1.2. Section 2(c) of the Patent, Design and Trademark Act, 2022 (1965) (the “PDT Act”) defines a trademark as a word, symbol, or picture or a combination thereof to be used by any firm, company or individual in its products or services to distinguish them with the product or service of others.

1.3. All trademarks registered as per the PDT Act are entitled to protection from passing off and infringement. Section 16(2) of the PDT Act explicitly prohibits the copying or unauthorized use of a registered trademark without ownership transformation or written permission pursuant to Section 21 D of the PDT Act.

1.4. Section 19 of the PDT Act imposes penalties for illegal passing off and infringement, including fines and confiscation of goods, based on the gravity of the offense.

1.5. The Trademark Directives, 2072 (2015) (the “Trademark Directives”) ensure further protection to registered trademarks which are as follows:

1.5.1. To freely use the trademarks registered in their name.

1.5.2. To prevent other firms or companies from using the same trademark without permission in a manner that may cause confusion through display, viewing, speaking, hearing or other presentation.

1.5.3. To grant permission for trademark use to other firms or companies under certain conditions for a specific duration.

2. PASSING OFF AS THREAT TO TRADEMARKS

2.1. The Department of Industries (the “DOI”), a quasi-judicial industrial property authority under the Ministry of Industry, Commerce, and Supplies in Nepal, is responsible for the regulation and protection of all registered trademarks.

2.2. Any allegations of trademark infringement or passing off can be brought before the legal division of DOI. DOI has the authority to conduct hearings and issue rulings akin to those of a District Court in the country. Moreover, if parties are dissatisfied with the DOI’s decision, they have the option to appeal such decision to the High Court and eventually to the Supreme Court of Nepal, if such appeal meets the criteria of law.

2.3. Despite statutory provisions and legal precedents upholding trademark rights, Nepal faces significant challenges with trademark infringements and passing off cases.

2.4. Passing off occurrences, especially with well-known trademarks, are increasing, posing a threat to consumer rights and intellectual property protections.

2.5. “Well-Known Mark” has been defined under Section 2(f) of the Trademark Directives as a mark specified by the Government of Nepal (“GoN”) to be well-known. Nevertheless, as of the present date, GoN has neither released nor clarified the criteria for recognizing a well-known mark. This leaves the definition open to interpretation by the courts and DOI; some instances of courts interpretation have been discussed in paragraph 5 below.

2.6. While case precedents protect well-known trademarks, the lack of clear legal provisions raises doubts and potentially deter multinational corporations from trusting brand protection in Nepal.

3. WHAT CONSTITUTES AS PASSING OFF?

3.1. A trademark passing off is said to have occurred when a party, typically a business or individual, misrepresents their goods or services in a way that creates confusion or deception amongst the consumers, leading them to believe that the goods or services are associated with another party’s established trademark.

3.2. Goodwill, built through consistent branding, production, and advertisement, is a crucial element in passing off cases. When another competitor passes off on this goodwill of another trademark, the consumers are the ones who must face the direct hit as they might end up with subpar products or services under the mistaken belief that they are associated with the legitimate brand.

3.3. Lord Langdale MR, in the case of Perry v Truefitt, said that “a man is not to sell his own goods under the pretence that they are the goods of another trader”.

3.4. From interpretation and as a matter of practice to establish passing off, certain key elements need to be present such as:

3.4.1. The existence of goodwill: Claimant has to showcase the goodwill or reputation that they have built around its brand through its consistent branding, production, supply, and advertisement in a particular market or amongst a niche of consumers.

3.4.2. Misrepresentation: A clear misrepresentation from the alleged infringing party has to be demonstrated, that could deceive or confuse consumers into believing that.

3.4.3. The likelihood of confusion.

3.4.4. Actual or potential damage.

3.5. For instance, producing and selling a cold drink with its packaging, symbols, words, and colour combinations like that of Sprite, (a well-known trademarked soft drink product), with just a few tweaks and changes of letters or adding prefixes or suffixes on the mark construes as passing off.

4. WHAT ARE THE REMEDIES ONE CAN SEEK AGAINST PASSING OFF?

4.1. As a first rule of the thumb, to ensure the protection of a trademark, the crucial step is its registration with DOI. As outlined in Section 21B of the PDT Act, “The title to any patent, design or trademark registered in a foreign country shall not be valid in Nepal unless it is registered in Nepal by the concerned person.” This implies that trademarks registered in foreign jurisdictions, even those within the state parties of the Paris Convention for the Protection of Industrial Property, 1883 (the “Paris Convention”), will not enjoy protection in Nepal unless they are registered locally.

Note: Internationally, recognized well-known marks, as evidenced in case laws (discussed in paragraph 5, below), receive certain protection due to their widespread popularity. However, such protections cannot be guaranteed for well-known marks, if unregistered.

4.2. As per law, the DOI must facilitate the registration of trademarks from foreign countries without conducting elaborate inquiries if an application is filed along with relevant certificates of registration in the foreign country. This is in alignment with the provisions of the Paris Convention, as per Section 21C of the PDT Act.

4.3. However, as a matter of practice DOI conducts its regular investigation (as applicable for local trademarks) even if prior filing right is claimed as per the provision above.

4.4. After the registration of a trademark, if an entity attempts passing off an already registered trademark, an opposition claim can be filed at the Law Division of the DOI within 90 days of the publication of the mark in the Industrial Property Bulletin (“IP Bulletin”). This is in accordance with Section 21A(2) of the PDT Act.

4.5. Pursuant to Section 24(2) of the Trademark Directives, the opposition can also be filed in another language, provided that a notarized Nepali translation of the opposition claim is attached.

4.6. Upon the filing of the opposition, the DOI will refrain from issuing a trademark registration certificate for the opposed mark. The opposition will go through a similar process of litigation whereby the Parties will be called for hearings and the DOI will provide its decision on the opposed mark.

4.7. If either party is dissatisfied with the DOI’s decision, they have the option to appeal at the High Court within 35 days from the date of the decision.

4.8. On a different note, Section 25 of the Trademark Directives also provides administrative and judicial bodies for the enforcement of trademark rights. These are:

4.8.1. District Administration Office

4.8.2. Nepal Police

4.8.3. Customs Offices

4.9. These offices have been vested with the responsibility to work individually or collaboratively within their jurisdictions.

4.10. The collaborative efforts of the DOI and the mentioned administrative agencies can significantly enhance the protection of industrial property rights held by businesses, ensuring a healthy market environment for both consumers and competitors.

5. CASE LAWS RECOGNIZING THE PROTECTION OF WELL-KNOWN MARKS:

5.1. Kansai Nerolac Paints Limited v. Rukmani Chemical Industries Pvt. Ltd., NKP: 2077, Decision №10561.

5.1.1. Earlier, Rukmani Chemical Industries had registered the Kansai Nerolac Paint Nepal Pvt. Ltd. at the DOI, leading to the DOI prohibiting Kansai Nerolac Paints Limited, a Japanese multinational corporation, from using the Kansai Nerolac brand. Following an extensive legal battle in the DOI, High Court, and Supreme Court, the Supreme Court ruled in favour of Kansai Nerolac Paints Limited, establishing key principles:

5.1.1.1. “Deceptive similarity” is said to be constituted if a trademark or the words used are identical, or the trademark is displayed with modifications, such as the addition of prefix or suffix, creating a phonetic similarity with minimal dissimilarity and if presented in a similar manner at first glance.

5.1.1.2. Time limitation is not applicable for revoking the registration of a trademark if it is registered with bad faith or the registration process seems malafide.

5.1.1.3. Ownership and right over a trademark of a foreign company does not end only by virtue of the registration of such trademarks by a local company. Even after the registration of a mark copied from a well-known foreign mark by a local company, if the foreign company applies for registration of the mark at a later date, the registration in the name of the local company automatically ends.

5.2. Virgin Enterprises Limited v. Virgin Mobile Pvt. Ltd., 12 June 2023, Department of Industries

5.2.1. An opposition was filed by Virgin Enterprises Limited (“Virgin Enterprises”), a member company of the Virgin Group against Virgin Mobile Pvt. Ltd., a local company for the ownership on the mark “VIRGIN (and logo)”. Virgin Enterprises had registered their mark in Class 9 and 38 whereas the local company Virgin Mobile Pvt. Ltd. (“Virgin Mobile”) was seeking to register the mark in Class 35.

5.2.2. The DOI rejected the application of Virgin Mobile based on the following:

5.2.2.1. The “VIRGIN” mark has been registered and used by Virgin Enterprises in Nepal and other countries and thus is a well-known mark belonging to Virgin Enterprises

5.2.2.2. The mark in question, “VIRGIN (and logo)” did not appear to be the original creation of Virgin Mobile.

5.2.2.3. Virgin Mobile filed the application in bad faith.

5.2.2.4. Allowing registration of the mark in the name of Virgin Mobile will adversely affect the goodwill of Virgin Enterprises and cause confusion among consumers.

5.2.3. The DOI also reiterated its position that a well-known mark shall receive protection not only in the class in which it has been registered but also in other classes as well as in non-competing goods and services where the well-known mark does not have registration.

5.3. Six Continents Hotel Inc. V Holiday Express Travels and Tours Pvt. Ltd., 10 July 2023, Department of Industries.

5.3.1. An opposition was filed at the DOI by Six Continents Hotel Inc. (“Six Continents”) for their trademark “HOLIDAY INN EXPRESS” registered in Class 43 in Nepal against a local company Holiday Express Travels and Tours Pvt. Ltd. (“Holiday Express”) which had filed to register its mark “HOLIDAY EXPRESS TRAVELS AND TOURS (and logo)” in Class 35.

5.3.2. Six Continents opposed this application claiming that “HOLIDAY INN” marks are globally well-known marks and the application was filed in bad faith and can confuse the public.

5.3.3. The DOI made the following determination in the given case:

5.3.3.1. HOLIDAY INN marks have been registered and are used by Six Continents in Nepal and other countries and thus are well-known marks belonging to Six Continents.

5.3.3.2. Holiday Express’s proposed mark does not seem to be its original creation and the application has been made in bad faith.

5.3.3.3. Allowing registration of the “HOLIDAY EXPRESS TRAVELS AND TOURS (and logo)” mark to Holiday Express Nepal can adversely affect the goodwill of Six Continents and therefore shall cause confusion among consumers.

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