Orange Personal Communications Services Ltd v The Registrar of Trade Marks

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Matthew, J.
• Judgment Date: 15 November 2001
• Neutral Citation: MS 2001 HC 6
• Docket Number: Civil Suit No. 22 of 2001
• Date: 15 November 2001

Orange Personal Communications Services Limited

and

The Registrar of Trade Marks

Matthew, J. (Ag.)

Civil Suit No. 22 of 2001

High Court

Revenue law - Stamp duty — Registration of trade mark — Applicant sought order that (1) respondent's directive that a copy of an authorization of agent respecting a trade mark application should be certified and bear additional stamp duty of $3.00 was incorrect and could not be supported at law, (2) a further order that a single authorization of agent could be used against any number of trade mark applications filed jointly by the same proprietor; (3) that there was no need to duplicate and stamp the same for each application and (4) an order that the Registrar pay the costs of the application — Whether there was any legal basis for authorization of agent — Applicant's summons dismissed with costs.

Appearances:

Mr. Jean Kelsick for the applicant.

Mr. B. Cottle, Attorney General, for the respondent.

1 Matthew, J. (Ag): On July 5, 2001 the applicant filed a summons asking for the following relief:–

• (a) An order that the respondent's directive that a copy of an authorization of agent respecting a trade mark application must be certified and bear additional stamp duty of $3.00 is incorrect and cannot be supported at law;

• (b) A further order that a single authorization of agent may be used against any number of trade mark applications filed jointly by the same proprietor and there is no need to duplicate and stamp the same for each application;

• (c) An order that the Registrar do pay the costs of this application.

2 The summons was supported by an affidavit of Mr. John C. Kelsick, an attorney at law.

3 There were three exhibits to the Affidavit as follows:

• JCK 1 - An authorization of agent from the applicant dated March 27, 2001.

• JCK 2 - A letter dated May 17, 2001 from Kelsick and Kelsick to the Registrar, Trade Marks Office; and

• JCK 3 - A letter dated May 24, 2001 from the Registrar to Kelsick and Kelsick.

4 On August 16, 2001 the Attorney General filed an appearance on behalf of the respondent and gave notice to the applicant of the entry of Appearance. An Affidavit was filed by Ms. Sonya D. Young, an Attorney at Law, on September 4, 2001.

5 The matter went before Master Hugh Rawlins who on August 10, 2001 ordered, inter alia, that it be adjourned to the Chamber List for a date to be fixed by the Registrar. The matter came up for hearing on November 9, 2001.

SUBMISSIONS BY COUNSEL

6 Learned counsel for the applicant submitted that the section of the Act relevant to this application is Section 35 pertaining to the “Exercise of discretionary power by the Registrar”, and the relevant Rules were 6 and 35 pertaining to “statement and declaration on Application for Registration” and “Forms” respectively.

7 Counsel submitted that the issues in this matter which he questioned were the payment of stamp duty on the copies of authorization; the need to certify the copies as true copies; and the additional payment of $5.50 for certification.

8 Counsel submitted that there was no statutory requirement for the filing of an authorization of agent and there were no forms for the purpose in the Act or Rules. Counsel further submitted that if the application was made by an Attorney-at-Law there should be no need to file an authorization. He concluded however, that it was the practice for over fifty years, as stated in paragraph 4 of the affidavit in support of the application, to file an authorization of agent.

9 Counsel then submitted that if one starts on the premise that the authorization of agent has no legal basis any further requirement must also have no basis.

10 Counsel submitted that stamp duty was based on the Stamp Act, Cap 238, as amended, and there...