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                  THE      AITORNEY             GENERAL

                                OF    TEXAS




    Honorable Wm. J. Lawson               Opinion No. O-4809
    Secretary of State
    Austin, Texas                         Fie: Matter of registering a trade
                                               name for a magazine -- "Esquire"
    Dear Mr. Lawson:

                Your inquiry with reepect to the above subject matter io be-
    fore un.    It reads as follows:

                 "We are submitting to you herein the file of ESQUIRE, INC.,
            a corporation organized under and by virtue of the laws of
            Delaware, with its principal business 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.

                 "You will observe that this corporation has no permit
            to do business in Texas but their letter would indicate
            that they solicit sales by a local distributor throughout
            this state.

                 "Will you please advise this Department whether or
            not their method of business and especially its activi-
            ties through local agents or distributors constitute in-
            trastate or inter&ate transaction as that term is de-
            scribed in the case of Normandie Oil Corporation vs. Oil
            Trading Company Incorporated, 163 SW 2nd, 179 (advance
            sheet).

                 "Will you also advise this Department whether it is
            permissible for this Department to approve a trade mark
            or a trade name for a corporation whose principal busi-
            ness is periodicals or magazines, which corporation does
            not have a permit to do business in this State, this De-
            partment having heretofore refused to approve such appli-
            cations."

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

                 "Every person, association or union of working men,
            incorporated or unincorporated, that baa heretofore or
                                                                   -      .




Honorable Wm. J. Lawson, page 2 (O-4809)



     shall hereafter adopt a label, trade mark, design, device,
     imprint or form of advertisement, shall file the asme in
     the office of the Secretary of State by leaving two fat
     simile copies, with the Secretary of State, and naid Sec-
     retary ehall return to euch person, aeeociation or union
     so filing the same, one of said fat simile copies along
     with and attached to a duly attested certificate of the
     filing of same, for which he shall receive 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 euch 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
     advertisement ehall be filed as aforesaid that would
     probably be mistaken for a label, trade mark, design,
     device, imprint or form of advertisement already of rec-
     ord. No person, or association ~hallbe permitted to
     register as a label, trade mark, design, device, im-
     print or form of advertisement any emblem, design or
     resemblance thereto that has been adopted or used by
     any charitable, benevolent or religious society or as-
     sociation, without their consent."

          While this Article does not mention corporations, nevertheless,
we think it clearly was the intention of the Legislature to include corpo-
ration in the more general words actually employed.

          Article 10, of the Revised Civil Statutes, declares: "The
singular and plural numbers shall each Include the other, unless~other-
wise expressly provided." 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 should not be denied upon 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, associa-
tions or corporations doing business in Texas. The clear purpose of
the statute Is to permit such registration by those having an interest
in the article, trade-mark, or thing sought to be protected from use
generally. It applies as well to non-residents as to residents of the
State 60 far aswery right is concerned.

          Article 851-B (Vernon's Codification) enacted subsequent to
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 application the Secretary of State Is not
concerned with the queetion of the applicant's right to do an intraetate
busineee in Texas at all. The regietration and protection of the trade
name, as we have shown above, is a8 much a part of the right to do an
interstate business, as it would be to do an Intrastate businees, and
in the absence of evidence to the contrary, the presumption is that the
applicant contemplates doing 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 corporation to carry on business in this
State. If the applicant should do business, or attempt to do business
in Texas 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'~                          ATTORNEY GENERAL OF TEXAS
I4 Grover Sellers
FIRST ASSISTANT                                 By /s/ Ocie Speer
ATTORNEY GENERAL                                       Ocie Speer
                                                        Assistant

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                                    APPROVED OPINION COMMITTEE
                                         BY BWB, XYhairman
