. -



### THE AITORNEY GENERAL OF TEXAS

Honorable Wm. J. Lawson Secretary of State Austin, Texas
Dear Mr. Lawson: OpinionNo. O-4809 Fie: Matter of registeringa trade name for a magazine -- "Esquire"

Your inquirywith reepect to the above subjectmatter iobefore un. It reads as follows:

"We are submittingto you herein the file of ESQUIRE, INC., a corporation organizedunder and by virtue of the laws of Delaware,with itsprincipalbusiness 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.
"Youwill observe that this corporationhas no permit to do business in Texas but their letterwould indicate that they solicit salesby a local distributorthroughout this state. "Willyou please advise this Departmentwhether 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 Corporationvs. Oil Trading Company Incorporated, 

### 163SW 2nd, 179 (advance sheet). "Will you also advise this Departmentwhether it is permissible for this Department to approve a trade mark or a trade name for a corporationwhose principalbusiness isperiodicals or magazines,which corporationdoes 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: "Everyperson, association or union of working men, incorporatedor unincorporated,that baa heretofore or- .

HonorableWm. J. Lawson,page 2 

### (O-4809)

shallhereafter adopt a label, trade mark, design, device, imprint or form of advertisement,shall file the asme in the office of the Secretary of Stateby leaving two fat simile copies,with the Secretary of State, and naid Secretary ehall return to euchperson, aeeociation or union so filing the same, one of said fat simile copiesalong with and attached to a duly attested certificate of the filing 

### of same, forwhich he shall receive a 

### fee of one dollar. Such certificate of filing shall in all suits and prosecutionsunder this chapterbe sufficientproof of the adoption of euch label, trade mark, design, device, imprint or form of advertisement,and of the right of suchperson, association or union to adopt the same. No label, trade mark, design, device, imprint or form of advertisement ehallbe filed as aforesaid that would probably be mistaken for a label, trade mark, design, device, imprint or form of advertisementalready of record. No person, or association ~hallbe permitted to register as a label, trade mark, design, device, imprint or form of advertisementany 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 clearlywas the intentionof the Legislatureto include corporation in the more generalwords actually employed.

Article 10, of the Revised Civil Statutes, declares: "The singularand plural numbers shall each Include the other,unless~otherwise expresslyprovided." 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 shouldnot be deniedupon 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 corporationsdoing business inTexas. The clearpurpose of the statute Is to permit such registrationby those having an interest in the article, trade-mark, or thing sought to be protected from use generally. It applies as well to non-residentsas to residents of the State 60 far aswery right is concerned.

Article 851-B (Vernon'sCodification)enacted subsequentto 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 applicationthe Secretary of State Is not concernedwith the queetion of the applicant'sright to do an intraetate busineee inTexas at all. The regietrationand protection of the trade name, as we have shown above, is a8 much a part of the right to do an interstatebusiness, as itwould be to do an Intrastatebusinees, and in the absence of evidence to the contrary, the presumption is that the applicant contemplatesdoing 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 corporationto carry on business in this State. If the applicant should do business, or attempt to do business inTexas 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