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