Honorable William      J. Lawson
Secretary  of state
Austin, Texas

Dear Mr. Lawson:                       Attention:   Mr. Abner   L. Lewis

                                       Opinion No. O-4791
                                       Re: Right of an applicant to file,
                                            have approved and registered
                                            a trade-mark  or trade name
                                            under R.C.S., Article 851 --
                                            “Victory Motor Oil. Is

            We have your inquiry asking an opinion from           this Depart-
ment with respect to the above subject matter, the letter         being as fol-
lows:

             “We are handing you herein the application     of
      J. L. Surginer of Crosbyton,   Texas, for registration
      of the trademark   and trade name under Article 851 of
      the Statutes, the words ‘Victory Motor Oil”.

             “This department will appreciate       your answer
      to the following questions:

             ‘“1.   Is this department authorized to approve and
                    file for trade name or trademark    and thus
                    grant the exclusive use of the names Victory
                    and Motor Oil, which names are in such com-
                    mon use by the General Public even though
                    said trade name or trademark    is coupled with
                    a design, same not being a manufactured     article
                    or a formula in which the applicant is owner?

             “2.    Does such design and wording shown on the fac-
                    simile show such ownership as would entitle the
                    applicant to the exclusive use thereof?
Honorable   William    J. Lawson   - page 2




              “3.   Should this application    be granted?”

             Article   851, of the Revised     Civil Statutes,   is as follows:

              “Every person, association          or union of workingmen,
      incorporated      or unincorporated,      that has heretofore      or shall
      hereafter     adopt a label, trade mark, design, device, imprint
      or form of advertisement,          shall file the same in the office of
      the Secretary      of State by leaving two facsimile         copies with
      the Secretary      of State, and said Secretary       shall return to
      such person, association         or union so filing the same, one of
      said facsimile      copies along with and attached to a duly at-
      tested certificate      of the filing of same, for which he shall re-
      ceive 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 such 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 adver-
      tisement shall 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 as-
      sociation    shall be 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.”

             The statute does not undertake to confer upon a registrant
of such a label or trade-mark    a property right in the label or adver-
tisement as such, but rather to protect the registrant    with respect to
the article, formula, contents or property or property rights whatso-
ever, to which the label or trade-mark     relates.  Such labels have no
element within themselves    of literary or artistic property value.

             It is settled property-right  law that words that are purely
descriptive  of the property thus protected   may not be copyrighted  so as
to give the claimant a monopoly upon the use of such words.

             Mere labels which simply designate or describe     the articles
to which they are attached, and which have no value separate from the
articles have never been within the protection  of the copyright law. (18
C.J.S.p. 177). While this is the rule specially with respect to federal
Honorable     William   J. Lawson    - page 3




copyright,    it is likewise   apparently    the rule under our statute.

             There is also a well-established  rule of law that words and
terms in common use are not to be copyrighted      by any one, and we think
this wholesome   principle applies with unusual force in the present in-
quiry.

             Certainly, the words “motor oil” are in no sense copyrightable,
and the addition of the word “victory” to the label does not help the matter,
in our opinion.   The word “Victory”     should not only be deeply engraved
upon the tablets of every heart in this country    and oft upon the tongue of
every loyal citizen, but it should also be free.    Copyright monopolies    are
granted upon the conception   of fostering achievement     and preventing un-
fair trade competition.

                No such reasons exist       and no such right should follow   to a mo-
nopoly    of patriotism for pecuniary       profit.

              This Department in Opinion No. O-583, addressed  to the Secre-
tary of State, rendered a similar opinion wherein the following language was
used:

                 “Furthermore,     it is with unmitigated apprehension    that
         we view any monopolization        01 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, Makes Texas’ must
         not be brought within the category of trade names or “form ad-
         vertisement.’    ”

                Your questions    are answered     in the negative.

                                               Very truly yours

                                     ATTORNEYGENERALOF                TEXAS



                                     BY                /s/   Ocie Speer
                                                   Ocir Specs
                                                   Assistant
OS: MR:da

APPROVED        NOV 13, 1942                                 APPROVED   OPINION
/s/ Gerald      C. Mann                                        COMMITTEE
ATTORNEY        GENERALOF         TEXAS                      BY BWB
                                                               Chairman
