Untitled Texas Attorney General Opinion ( 1939 )

Gerald C . Mann
Secretary of State Att ‘n: Claude A. Williams
Austin, Texas opinion No. o-1583
Be: Did the Secretary of State’s
Dear Sir: Department err in refusing to file
Mr. Wallace’s application for the
registrations of the names “Texas
HourI and What Texas Makes Makes
Texas”?
We are in receipt of your request asking for an
opinion on’whether or not the Secretary of State erred in
refusing to file application fpr registration of the names
“Texas Hour” and “What Texas Ma&es Makes Texas” for a radio
program in accordance with Artioles 843 to 851, Revised
Civil Statutes, 1925.
.Accompanying your letter of request is a copy of
the “application for registration of trade mark, label de-
sign, etc.,” of F. S. Wallace properly executed and acknow-
ledged.
It reads in part:
“Be it known that F. S. Wallace of 3418
Morrow Avenue, Waco, Te as, has heretofore
adopted and used a cert in form of advertis-
ing and/or name and slo ii!an and herewith
files the same for record in the office of
the Secretary of the State of Texas
vided in Article 843 to 851, inc., R *CBS“1’9:5. ‘1
“The purpose for which this label design,
etc., or class of merchandise on which the
same has been and is to be used is designation
of and use on - during and signature of a radio
program, promoting development of Texas natural
resources and industries.”
Article 851, Revised Civil Statutes of Texas which
is the statute under which the name and slogan “Texas Bour”
and “What Texas makes, makes Texas”, are sought to be regis-
tered, provides in part:
Secretary of State, page 2 (O-1583)
‘Every person, association or union of work-
ingmen, incorporated or unincorporated that
has heretofore or shall hereafter adop e a labels,
trade mark, design device, imprint or form of
advertisement ) sha i 1 file the same in the office
of the Secretary of State by leaving two facsim-
ile copies, with the Secretary of State, and said
Secretary shall return to such person, association
or union so filing the same one of the said fac-
simile copies along with ani attached to a duly
attested certificate of the filing of same, for
which he shall receive a fee of one dollar. ***‘I
Broad as the statute is in respect to “a label,
trade mark design, device, imprint or form of advertise-
ment,” stifl as to which words or phrases may be appropri-
ated and registered the case law of the state has formu-
lated certain definite rules of guidance.
Geographical names are not subject to appropria-
tion as trade marks or trade names, according to the deci-
sions of this state.
WALDE ROCK ASPHALTCO. v. CHAPIN-COLGLAZIER
CONST. CO. s (Civ.App.) 299 S.W. 710, error
refused;
WINTERGARDENDISTRICT CHMER OF COWMERCE v.
WINTERGARDENFAIR (Civ.App,.) 299 S.W. 5l2,
error dismissed.
.
Words or phrases in common use are common property
of the people 9 and are not subject to exclusive appropriation
and usey.
ALFF v. RADAM 77 TEX. 530 $0 14 Sow. 164;
RADARv. CAPfiAL MICROBED&STRO&RCO,, 81 Tex.
122 16 sew. yyog
DIK&G CORPORATION v. PIG STANDCOO, (Civ.
A p.) 31 S.W, (2d) 325$ certiorari denied,
2 f;3 U.S. 831, 51 SupXt. 364, 75 L. Ed. 1443.
The word “Texas” is the peer of all geographical
names in this State, and the phrase “What Texas Makes, Makes
Texas”~ has in the prooess of time become a state-wide slogan,
‘familiar to the people of the Lone Star State and universal
in its application to’the products of the state and their de-
velopment in trade, commerce and industry*
The principles of law above enunciated apply most
forcefully to these words and their attempted appropriation
for exclusive user.
Secretary of State, page 3 (O-1583)
Furthermore, it is with unmitigated apprehe~nsion
that we view any monopolization or private exploitation of
words which are the common heritage of the people and which
are too symbolical of patriotism and the social and economic
weal of the state to be used commercially. As a matter of
public policy, the words "Texas'@ and What Texas Makes, Rakes
Texas" must not be brought within the category of trade names
or "form of advertisement".
It is our opinion that the words *3Texas~'Hour'4and
What Texas Makes, Rakes Texas" may not be legally regis-
tered as the name and slogan of a radio program'under Articles
843 and 851 inc. Revised Civil Statutes, 1925, and that the
Secretary oh Stat: is not obliged to file such name and slogan
all.. qzwuP&%a. m.r``Lka.+~ f22.afLwcWr‘A uL+-JL WIP-qJY-l~L%Lwls
of Article 851, Revised Civil Statutes, 1925.
Trusting that we have fully answered your inquiry,
we are
Yours very truly
ATTORNEY
GEXERALOF TEXAS
By /s/ Dick Stout
Dick Stout, Assistant
APPROVED NOV 20, 1939
/s/ Gerald C. Mann
ATTORNEY GENERALOF TEXAS
APPROVED:OPINIONCOMMITTEE
BY: BWB, CHAIRMAN
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