Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Ronorable Claude Isbsll Assistant Seoretary of State Aua t in, Texas Dear Art We have your letto opinion of thlz department an Suoh letter 0DlittiAg the fon!lal pa Sibley, Trout- map E Brook oel the trade mz4c filed i he K&e Company whloh Along with this toetatio oopg of ted States 31striot lzom rhioh is oertiiled ting these doounents to you for and would ask that you please whether or not Fn your oplnian notfoe tar the 3eoretsry or State requested In Art. 851a of the tee or t@81c55, n . l . .- The properly oertified oopy of the decree of the Utito4 Statea 3lstrlot Court for the Ciatrlot of Arizona enoloaed wltb your letter is &ted June lJ+, 192l.. PTeAote the deoree ~55 entered 82.8 Honoleble Olaude Isball, Page 2 to oonrorn~ with the deofslon of the Supme Court of the United States in the oaaa oi Tha Oooa ‘Oola Oonpa~y fa. Koko Coarpany or Amrloa, 65 L, Kd. 189, 254 U. S. l43, sod that tha dorendants napled In suoh deoreo are as ltollowrt The Koke Company. of dmerloa, The Southen, Koke Company, Ltd., The Koka Company of Texas, The Koke Company of Oklahcdna, and The Koke Company of Arkansas. The deoree perpetually enJoins and restrains euoh defendants, their otiioars, sar- tant8, agents, employeea, attorney*, lioensees, transfereea aad ass&m and all aotlng by or under their authority from usdng or mploying in oonneotion with the zmnufaoture, ad- vertlsament, offering ror sale or sale ot any pmduot not - being a genuine produot of the PlaIAtIff the word “CoOa Cola” or any like word or tha word %okeW or any like word and from OlaFming 4r asserting any right in the name %oke” or inter- raring er thraatenning any proseoutlon or interfereA with ths uaa thereof and from using or axmloying or authori&@ the Ase or employment of labels designs or devlaes Mentl- oal with or like the labels, de&As or derloes of the plain- tiff or the labels, designs or derioee used by the defeAtbAt and referred to IA the bill of oomplaint lo auqh suit. 71e also hare your sqpplsniental letter stating In effsot that you are unable to determine the eraot name of the registrant or the trade mark “Koko” aAd. enolosing ths lpplI- oation for t&e reglstratlon of the ,fraUe mark dated Septem- ber 16, 1910, and the oertlfloate of the Searotary of State an to suoh filing rhloh oertiflaate Is dated September 19, 1910. Wo note that the applloant Is rarloualy referred to in the lpplioatlon as “The Koke Compenr, Ltd.’ and as %oke Compenyw end aesoke Company, Ltd.“. The oertlfloate or the Seoretary or State refer8 to the regletrant ae qoke Company, Shreveport, LoulaIcma*. You will note that none oi these name8 15 the aame as the name oi any of the defendants a8 set out iA the above mentioned deoree. Artlole 851-A of the Revieed 0lrl.l Statutes of Texas reads as followa: mXhenever It Is brought to the 6tta5tIOA of or becomes known to, the Seoretary or State that any label, trade-mark, design, device, lmprixit or I f Honorable Claude Isbell, Fag6 3 form of advertisement heretofors or hereafter filed with the offjoe or the Seoretsry 0s State pursuant to the pru~lsloru 0s Artlole 651 of the Revised Civil Statutes of Terse of 1925, by ,any person, Assoalatlon, or.-. Unioa 0s_ warklng _ - men,.lnoorponrted . or unmoorporatea, nas Dew am3naoued or the use thereof ha5 been dlsooAtlnued for more than three years, it Bhall be the duty of the Ssoretary of State to oanael and annul suoh tl:l~g and withdraw the same rr0lpraglstratloA, after rim giVlAg to the registrant, or anp asalgnee of reoord thirty days* notloe of the intention so to do, whloh notloe shall be by registered United State5 mall addressed to the last knorm addrese of tha person, Assooia- tlon or UAlon of working mm, lmorporated or AA- incorporated, filing the came or any aaelgnes thereor. R You will aota that the Ssaretary of State 15 au- thorlzed to issue notloe to the registrant of intention to oanoel and awful the riling when it la brought to his atten- tion or beoamee known to hLm that the trade mark has been abandormd or ths use thereof ha5 been dieoontiaued So% more +an three year6. The letter iron oounasl for th5 Cooa Cola Company does not state that the trade mark has been aban- doned or that ths use ha5 been dlsooatinued r0.r more than three yeara, Than, is no erldenoe identlfylng the Texas rsgiatrant as oAe az&the 5aze sorporatlon a8 any OS the de- fendants named in the Federal Oourt deoree and them is no ,aldenos to show what OoAAeotloA, 1s any, the ,mglstrrnt ha5 with eush driendmts. It is our OPIAIOA, therefore, that nothing IA the papers submitted to us 15 aattlolent to bring to the Seorstary 0r Stats'5 attentton or make known to him the iraot, if lt exlate, that t& trade mark aKoksa ha5 been abandoned or that the use thereof has been discontinued for more than three years. You are respeotiully advieed that these papers IA our opinion would not ,authorlze t&e Saoretary 0s State to ls- sua Aotloe of intention to oenoal as set out in Artlola 851-A of the Revised 01~11 Statutes or Texas. Honorable Claude Isbell, Page 4 We trust that the above is a sufflolent answer to your qUB5tiOA.All papers and instrumsnta sent Us in this aomeotionare r&urned herewith. Yourr very truly AT!RMNWOENEF?ALOFTXMS, Domld Gav Asrrletanii