1. Whether authorisation filed by a trademark agent under Section 145 of Trade Marks Act is liable for stamp duty. (Para 2 )
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2026 Supreme(Online)(Ker) 65205
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bechu Kurian Thomas, J
JOHN VADASSERY – Appellant
Versus
THE REGISTRAR OF TRADEMARKS – Respondent
WP(C) 17/2026
Advocates:
For the Appellants/Petitioners: John Vadassery
For the Respondents: Anju Divakar
For the Appellants/Petitioners: John Vadassery
For the Respondents: Anju Divakar
Authorizations filed by trademark agents under the Trade Marks Act, 1999, are considered instruments (powers of attorney) creating rights of representation. Since they are filed before a government officer and not a court, they are subject to stamp duty under the relevant Stamp Act.
Headnote:(A) Trade Marks Act, 1999 - Section 145 - Trade Marks Rules, 2017 - Rule 19 - Indian Stamp Act, 1899 - Sections 2(j) and 2(p) - Whether authorisation filed by a trademark agent is liable for payment of stamp duty - Authorisation treated as a power of attorney - Levy of stamp duty is a fiscal measure enacted to secure revenue for the State (Para 11) - An 'instrument' includes every document by which any right or liability is created, transferred, limited, extended, extinguished or recorded (Para 12) - Authorisation creating a right on a person to represent another, which possesses all the trappings of a power of attorney, must be stamped under the relevant Stamp Act (Para 16).
(B) Court Fees Act - Application to documents filed before government officers - Registrar of Trade Marks is neither a Court nor a Tribunal but an officer appointed by the Central Government; therefore, State Court Fees Acts have no application to the documents presented before such authority (Para 7).
Facts of the case:
A trademark agent challenged the practice of the registry requiring applicants to submit authorisations stamped as powers of attorney. The petitioner contended that Section 145 of the Trade Marks Act, 1999, and Rule 19 of the Trade Marks Rules, 2017, only require an authorisation in the prescribed form and that such a document should not be treated as a power of attorney liable for stamp duty.
Findings of Court:
The court held that the authorisation enables an agent to perform multifarious functions that bind the principal and affect their rights. Since the definition of an 'instrument' under the Stamp Act is wide and includes documents creating rights, the authorisation constitutes a power of attorney. Further, because the registry is not a court, the exemption available to vakalathnamas under court fees acts does not apply here.
Issues: Whether the authorisation filed by a trademark agent under Section 145 of the Trade Marks Act, 1999, is liable for payment of stamp duty and whether such authorisation can be treated as a power of attorney.
Ratio Decidendi: Authorisation prescribed under section 145 of the Trade Marks Act, 1999, read with rule 19 of the Trade Marks Rules, 2017, is an instrument creating a right to represent another. As such an instrument possesses the characteristics of a power of attorney and is not subject to court fees, it must be stamped under the relevant Stamp Act of the state where it is executed.
Result: Writ petition dismissed.
Legal Category Hierarchy
Table of Contents
2. Petitioner: Stamp duty not required; Respondent: Authorisation is a power of attorney requiring stamp duty. (Para 3 , 4 )
3. Registrar is not a court; Stamp Act governs; authorisation creates rights; has trappings of power of attorney. (Para 7 , 10 , 11 , 12 , 13 , 14 , 15 , 16 )
4. Authorisation under Section 145 read with Rule 19 is an instrument creating a right, thus stampable. (Para 16 )
5. Writ petition dismissed; declarations sought cannot be issued. (Para 16 )
6. Is an authorisation filed by a trademark agent under Section 145 of the Trade Marks Act liable for stamp duty?
Yes, the authorisation is an instrument creating a right to represent another and must be stamped under the relevant Stamp Act. (Para 11 , 12 , 13 , 16 )
7. Can an authorisation filed by a trademark agent before the Trade Marks Registry be treated as a power of attorney?
Yes, the authorisation has all the trappings of a power of attorney as it empowers a person to act for another. (Para 13 , 16 )
8. Does the Trade Marks Act or Rules determine stamp duty liability on an authorisation?
No, the Trade Marks Act and Rules cannot control or determine stamp duty liability, which is governed by fiscal Stamp Acts. (Para 11 )
9. Does the exception for vakalathnama filed before courts apply to authorisations before the Trade Marks Registry?
No, because the Registrar is an officer of the Central Government, not a court or tribunal, so court fees Acts do not apply. (Para 7 , 14 )
JUDGMENT
Is the authorisation filed by a trademark agent, under Section 145 of the Trade Marks Act, 1999, liable for payment of stamp duty? Can the authorisation filed by a trademark agent before the Trade Marks Registry be treated as a power of attorney? The above questions arise for consideration in this writ petition filed under Article 226 of the Constitution of India.
2. Petitioner is a trademark agent under the Trade Marks Act, 1999 (for short, 'the Act'). According to him, the Trade Marks Registry insists on the applicants who are represented by trademark agents, to submit an authorisation stamped as a power of attorney. According to the petitioner, the authorisation contemplated under the Act need not be stamped as a power of attorney, and an ordinary authorisation would suffice the requirement of the statute. Petitioner asserts that the terminology used in Section 145 of the Act is 'authorised' and not `a power of attorney' and therefore insistence on executing a power of attorney or stamping the authorisation as that of a power of attorney, is, without authority of law.
3. A statement has been filed on behalf of the respondents pointing out that the purpose of engaging an agent is to enable that agent to do any act on behalf of the applicant. It is also stated that such authorisation will permit service of any document relating to the proceedings, service of all communications and even all appearances before the Registrar. According to the respondents, a power of attorney is required for the said purposes and the application with the power of attorney duly executed by the applicant with the prevailing stamp duty according to the particular State in India is required to be filed. It is further stated that the rate of stamp duty payable, varies from State to State and the said practice has been followed for a long time as the payment of stamp duty is a State subject which generates revenue for the particular State.
4. Sri. John Vadassery, the petitioner as party-in-person, contended that the insistence on production of a power of attorney for a trademark agent to appear before the Trade Marks Registry, is without any authority of law. Placing reference to the authorisation given before the postal authorities for collecting a postal article, petitioner submitted that a stamped power of attorney is not contemplated by law and on the other hand, an authorisation as prescribed, if submitted on a plain paper, should suffice the requirement. Referring to Section 145 of the Act and Rule 19 of the Trade Marks Rules, 2017 (for short 'the Rules'), the petitioner contended that since the Rules contemplate presentation of application through authorisation, the statutory framework under the Act cannot be interpreted as mandating a compulsorily stamped power of attorney. It was further contended that the authorisation contemplated under the Act and Rules is not an instrument, unlike a power of attorney, and therefore, a stamped authorisation is not contemplated by the statute.
5. Smt. Anju Divakar, the learned Central Government Counsel, on the other hand, contended that the practice followed all along, before the Trade Marks Registry was by accepting a stamped power of attorney indicating the authority to represent a party. It was submitted that to enable a person to act on behalf of another, an authorisation as prescribed is required. It was also submitted that the authorisation enables the agent to act or do various things before the Registry and hence must require a stamp as that of a power of attorney as per the relevant Stamp Act.
6. I have considered the rival submissions.
7. Section 3 of the Act provides for the power of the Central Government to appoint a person as the Registrar of Trade Marks and such other persons, to discharge the functions prescribed under the Act. The Registrar is neither a Court nor a Tribunal. At this juncture, it needs to be noted that, generally, the provisions of the various statutes relating to court fe
