The opinion
..
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
~~~-
0S:wb Assistant
APPROVJID:
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ATTORNEY CZ!SERAL