. - 

THE AITORNEY GENERAL 

OF TEXAS 

Honorable Wm. J. Lawson 

Secretary of State 

Austin, Texas 

Dear Mr. Lawson: 

Opinion No. O-4809 

Fie: Matter of registering a trade 

name for a magazine -- "Esquire" 

Your inquiry with reepect to the above subject matter io before 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 activities through local agents or distributors constitute intrastate or inter&ate transaction as that term is described in the case of Normandie Oil Corporation vs. Oil 

Trading Company Incorporated, 163 SW 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 business is periodicals or magazines, which corporation does 

not have a permit to do business in this State, this Department having heretofore refused to approve such applications." 

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 Secretary 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, device, 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 record. No person, or association ~hallbe permitted to 

register as a label, trade mark, design, device, imprint or form of advertisement any emblem, design or 

resemblance thereto that has been adopted or used by 

any charitable, benevolent or religious society or association, without their consent." 

While this Article does not mention corporations, nevertheless, 

we think it clearly was the intention of the Legislature to include corporation 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~otherwise 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, associations 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'~ 

I4 Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

ATTORNEY GENERAL OF TEXAS 

By /s/ Ocie Speer 

Ocie Speer 

Assistant 

OS-MR:jrb:lm 

APPROVED OPINION COMMITTEE 

BY BWB, XYhairman