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                                                           R-667




                            PLUSTIE,    TEXAS



                             July 20, 1947

     Hon. Paul H. Brown,               Opinion No. v-317
     Secretary of State,
     Austin, Texas                     Re: Eligibilityfor reg-
                                           istration as a trade-
      Attention:                           mark of the word nNipm.
      Hon. Kirk R. Mallory,
      Assistant Secretary
      of State
     Bear Sir:
                   Your request for an opinion by this depart-
     me&upon     the above subjectmatter is as follows:
                "An applicationfor registration
          of trademark,etc., under Article 851,
          V.A.C.S., has been recently filed in
          this office. The trademark sought to
          be registered is the word *NipWe No
          design or form of lettering was'submit-
          ted in oonnectionwith this application.
                "This office deoided, as a matter
          of fact, that this word is a~word in aom-
          man usage; and refused to register said
          trademark,relyingupon Attorney General's
          Opinion No. O-1583, and others, whereWit
          is statea, 'Words or phrases in oonunonum
          are coamon property of the ,people,and are
          not subjeat to exclaeire appropr%ationor
          the user,' oiting oases.
                "It has been the praotice,otthis
          office for several,years not to register
          words in common usage by themselves,aa a
          trademark,upon authority of your Opinion
          WC. O-1583.
                "The question is, should this office
          register a word in oomon usage, namely,
          'Nip' as a trademark, in the absence of any
          design, fern of lettering,etc.*
Hon. Paul H. Brown - Page 2   (V-317)


           Article 651, Vernon's Civil Statutes, inso-
far as pertinent, is as follows:
            "Every person, assooiatioa or union
      of working men, incorporatedor uninoor-
      porated, that has heretofore or shall here-
      after adopt a label, trademark,design; de-
      vice, 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,
      assooiation or union so filing the same,
      one of said facsimile copies along with and
      attached to a duly attested certificateof
      the filing of sane, for which he shall re-
      ceive a fee of 31.00. . . .w
            No facsimile copy of the proposed trademark
accompanies your request; neithek is there anything what-
ever shown beyond the mere fact that the word YXLpw is
presented for certificationas a!trademark. This is not
enough. There must be some elembnt of originalityor in-
diviaudity OP ~50.
            A reading of the statute quoted makes clear
that its purpose is to authorize the certificationby the
Secretary of State of only a visible somethingpreviously
adopted by the applicant in conneotionwith some charao-
ter of trade, commerce, or business activity. There is
nothing in the statute authorizingthe adoptionof anj
worU.as such. The right is limited to "a label, trade-
mark, design, device, imprint or form of advert1sement.w
No mere word generally, therefore, can come within the
scope of the statute. It is true that a word may be of
such mechanical form, design, setting, or assooiation
with other things, or of such proprietaryuse, as to acme
within the statute. If this constructionwere not true,
it could follow that all "catchy" words of our language
could be exclusively appropriatedto,private,use. The
Legislaturenever contemplateda thing of that kind.
           We are not to be under&o&    as holding that
the word nNipn may not become a part of a registrable
trade name if the manher of its use is such as to bring
it within the terms of the statute. But the exolu~sive
Hon. Paul H. Brown - Page 3    (V-317)


unlimited use of the word by one is not a thing to be
granted by the State.


              The word "Nip", standing alone, is
        not subject to qertifioationas a trade-
        mark under Article 851, Vernonis Civil
        Statutes.
                                     Yours very truly,
                              ATTORREYDEIQZAL OF TEXAS



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