Unlike most other jurisdictions,in India no document is valid legally,unless it is stamped under the appropriate Indian Stamp Act.This extends to documents such as power of attorneys,agreements,assignment deeds,affidavits, conveyances,licenses and the like.The Stamp Act comes into effect under the following circumstances:
- When the property either real, virtual or intellectual, is located in India;
- When either or any of the parties executing the document is resident in India;
- When neither of the parties is resident in India but the document is executed within the territory of India.
In most other jurisdictions, a scanned copy of a power of attorney or an assignment deed is accepted by the Intellectual Property Office.In India, this is not the case. In the first instance, the Indian Patent Office or the Trademark Registry requires the original documents to be produced adequately stamped by the Stamp Office.The stamp fee for documents such as power of attorneys or affidavits is minimal (about USD 2) but this exercise needs to be done before lodging these documents either at the Indian Patent Office or at the Trademark Registry.The normal procedure is as follows:
The document such as the power of attorney or assignment deed is emailed to the foreign associate or client or the person who is required to sign.The document is signed in original and physically returned to the Indian counterpart. On receipt of the originally signed document,this is then referred to the Stamp office for stamping.The stamping process takes up to about four working days and the stamped document is then filed at the appropriate office where it is needed to be filed.
In the case of assignment deeds for assignment of trademarks or patents, it is recommended that the Indian patent, patent application or trademark be considered separately and not included in the worldwide assignment. Such a document can be executed separately and adequately stamped before filing at the Patent Office. Worldwide assignments which deal with the Indian patent application specifically create stamp issues because they directly relate to property in India and for assignment of such a property to take legal effect, it must be adequately stamped under the Stamp Act. This does not apply to assignments of inventions, particularly if the inventions are created outside India and are assigned to an entity which is located outside India, where an Indian patent or patent application is specifically mentioned, such a document needs to be adequately stamped for having any legal sanctity.
In the case of agreements it can become more complicated if the consideration is mentioned in the agreement and the Indian Intellectual Property Right is not separately valued. We have had cases where we were asked to pay stamp duty in respect of a globally assigned IP for the entire consideration amount as the Indian patents/trademarks could not be separately valued.
Affidavits to be filed at the Indian Patent Office and the Trademark Registry or the Intellectual Property Appellate Board are treated in the same way and these documents coming from overseas also need to be adequately stamped before lodging at the offices where they are required to be lodged.
I reiterate, without such adequate stamping such a document cannot be given legal effect to and therefore does not have any evidential value.