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
DS:obswb
