Untitled Texas Attorney General Opinion ( 1942 )

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THE AITORNEY GENERAL
OF TEXAS
Honorable Wm. J. Lawson Opinion No. O-4809
Secretary of State
Austin, Texas Fie: Matter of registering a trade
name for a magazine -- "Esquire"
Dear Mr. Lawson:
Your inquiry with reepect to the above subject matter io be-
fore un. It reads as follows:
"We are submitting to you herein the file of ESQUIRE, INC.,
a corporation organized under and by virtue of the laws of
Delaware, with its principal business office in Chicago,
Illinois.
"This application is for the trade mark and trade name
of 'ESQUIRE'. The letter of October 26th in answer to mine
of the 14th explains itself.
"You will observe that this corporation has no permit
to do business in Texas but their letter would indicate
that they solicit sales by a local distributor throughout
this state.
"Will you please advise this Department whether or
not their method of business and especially its activi-
ties through local agents or distributors constitute in-
trastate or inter&ate transaction as that term is de-
scribed in the case of Normandie Oil Corporation vs. Oil
Trading Company Incorporated, 163 S.W. 2nd, 179 (advance
sheet).
"Will you also advise this Department whether it is
permissible for this Department to approve a trade mark
or a trade name for a corporation whose principal busi-
ness is periodicals or magazines, which corporation does
not have a permit to do business in this State, this De-
partment having heretofore refused to approve such appli-
cations."
Article 851, of the Revised Civil Statutes is as follows:
"Every person, association or union of working men,
incorporated or unincorporated, that baa heretofore or
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Honorable Wm. J. Lawson, page 2 (O-4809)
shall hereafter adopt a label, trade mark, design, device,
imprint or form of advertisement, shall file the asme in
the office of the Secretary of State by leaving two fat
simile copies, with the Secretary of State, and naid Sec-
retary ehall return to euch person, aeeociation or union
so filing the same, one of said fat simile copies along
with and attached to a duly attested certificate of the
filing of same, for which he shall receive a fee of one
dollar. Such certificate of filing shall in all suits
and prosecutions under this chapter be sufficient proof
of the adoption of euch label, trade mark, design, de-
vice, imprint or form of advertisement, and of the right
of such person, association or union to adopt the same.
No label, trade mark, design, device, imprint or form of
advertisement ehall be filed as aforesaid that would
probably be mistaken for a label, trade mark, design,
device, imprint or form of advertisement already of rec-
ord. No person, or association ~hallbe permitted to
register as a label, trade mark, design, device, im-
print or form of advertisement any emblem, design or
resemblance thereto that has been adopted or used by
any charitable, benevolent or religious society or as-
sociation, without their consent."
While this Article does not mention corporations, nevertheless,
we think it clearly was the intention of the Legislature to include corpo-
ration in the more general words actually employed.
Article 10, of the Revised Civil Statutes, declares: "The
singular and plural numbers shall each Include the other, unless~other-
wise expressly provided." And Article 23 declares: "'Person' includes
a corporation."
So that, the applicant Is entitled to file and have recorded
its trade name, if the same should not be denied upon the ground that
the applicant has no permit to do business in Texas.
There is nothing in Title 23 -- Brands and Trademarks, of the
Revised Civil Statutes, that limits the right of an applicant to the
registry of a trade name to residents of Texas, or to persons, associa-
tions or corporations doing business in Texas. The clear purpose of
the statute Is to permit such registration by those having an interest
in the article, trade-mark, or thing sought to be protected from use
generally. It applies as well to non-residents as to residents of the
State 60 far aswery right is concerned.
Article 851-B (Vernon's Codification) enacted subsequent to
Article 851, confirms our construction. It mentions private corporations
a8 being within the statute.
Honorable Wm. J. Lawson, page 3 (O-4809)
Moreover, upon thie application the Secretary of State Is not
concerned with the queetion of the applicant's right to do an intraetate
busineee in Texas at all. The regietration and protection of the trade
name, as we have shown above, is a8 much a part of the right to do an
interstate business, as it would be to do an Intrastate businees, and
in the absence of evidence to the contrary, the presumption is that the
applicant contemplates doing only a lawful business.
The filing and registering of the applicant's trademark in
nowise authorizes it to engage in business in Texas, if it otherwise
is not permitted as a fore4gn corporation to carry on business in this
State. If the applicant should do business, or attempt to do business
in Texas in violation of law, that would present a matter which concerns
the Attorney General in the enforcement of the laws.
Trusting that the above answers your inquiry, we are
Very truly yours
APPROVED NOV. 10, 19'~ ATTORNEY GENERAL OF TEXAS
I4 Grover Sellers
FIRST ASSISTANT By /s/ Ocie Speer
ATTORNEY GENERAL Ocie Speer
Assistant
OS-MR:jrb:lm
APPROVED OPINION COMMITTEE
BY BWB, XYhairman