The Montgomery advertiser., 1903-10-16
THE FERTILIZER ACT
ATTORNEY CENTRAL WILSON
 INTERPRETs BRANDING LAW.
Opinion Given in Response to Re- quest from Commissioner Poole as to Meaning of the fr#
 New Law.

Attorney General Massey Wilson. in res- ponse to a request from Commissioner R. R. Poole yesterday rendered an inn portant opinion in interpretation of the act recently passed by the State regulat- ing and registering the branding of fer tilizers. The. opinion is of the greatest importance to all the manufacturers and dealers in fertilizers in the State.
 The bill was passed to insure purity in the fertilizer sold in the State. Its direct operation in the main is affected by the opinion of the Attorney General which is given in a communication to Commission CT Poole, which is as follows:
 October 14, 1908. - Hon. R. R. Poole, Commissioner of Agri-
 culture and Industries:
 Dear Sir--I acknowledge receipt of your request that give my official opinion of the proper construction of certain pro- visions of the "act to regulate the regis tration. branding. sale. tagging and ana lysis of commercial fertilizers, acid phos- phates, fertilizer materials and chemicals in the Satte of Alabama" approved March 3, 1903. You desire to know.
 First-Whether or not 1t Is the duty of the Commissioner to refuse registration of brand name. or trade mark, or either, if 1t is similar to but not exactly the same as brand name, or trade mark, or either already registered and in use by another person. firm or corporation.
 second-Whether or not tax tags left in the possession of the manufacturer at the end of the fiscal year 1908, may be re- deemed with riew tags if presented within sixty days after September 90, last.
 Manufacturers, jobbers and manipula- tors of fertilizers. who may desire to sell the same in the State of Alabama, are required to file with the Commissioner of Agriculture the name of each brand of fertilizer. which they may desire to sell. Sec. of above act.) A brand name. or trade mark. or either, registered and in use by one manufacturer is not entitled to registration by another. (See of above act.) The purpose of a trade mark Is to identify the goods as those of the manufacturer who uses such trade mark or brand. This serves the double purpose of protecting the purchaser, who buys upon his faith in the manufacturer whose goods he supposes he Is buying; and also the manufacturer, by preventing others from reaping a benefit by using his trade mark or brand. The object of the law would be as effectually defeated If rival is permitted to register as his own the essential features of the trade mark or brand of another manufacturer, as 1t would be if he is permitted to
 
 If trade mark or brand offered for registration is SO similar to one already registered as to make it likely that it's use might mislead or deceive, think it should not be registered Just what simi- litude will constitute an infringement is often nice question on involving many considerations. It is impossible in ad- vance to cite instances or state imaginary cases which would be of service. The only safe course is to decide each case as 1t arises
 The answer to your question does not require that I undertake to define what is trade mark, which may be exclusive ly appropriated by its first user; what would be the effect if a manufacturer should register as his trade mark that which he would not have the right to adopt to the exclusion of others; or, if he should first offer for registration a trade mark which had already been in use by another. but which had not been register ed by such other. I do not express any opinion upon any of these questions
 The act in question, by its terms, did not become operative until October 1. Notwithstanding this am of opinion that the tax tag exchange feature applies to tags on hand at the end of the fiscal year which ended September 90, last, if the provisions of the statute are followed by the manufacturer desiring to make the exchange. Sec. ' of the act.)
 Very respectfully, ..a.,. Massey Wilson, -. Attorney General.