Attorney General Opinions and Advisory Letters

Decision Information

Opinion No. 61-118

Collection Attorney General Opinions and Advisory Letters
Date 11/21/1961
File Number 1961 Op. Att'y Gen. No. 61-118

Decision Content

Opinion No. 61-118

November 21, 1961

BY: OPINION OF EARL E. HARTLEY, Attorney General Oliver E. Payne, Assistant Attorney General

TO: Mrs. Betty Fiorina, Secretary of State, State Capitol Building, Santa Fe, New Mexico

QUESTION

QUESTION

Can an identical trade-mark or trade-name to identify the same type of business be issued to more than one individual if the trade-mark or trade-name is to be used in a different trade area (different county) within the State?

CONCLUSION

No.

OPINION

ANALYSIS

Section 49-4-7, N.M.S.A., 1953 Compilation (P.S.), et seq., provides the manner of making applications for registrations of trade-marks and trade-names. For purposes of the State trade-mark and trade-name statutes a trade area encompassing the entire State is presumed to exist even though as a practical matter a registrant might restrict his activities to one community.

We reach this conclusion because of the following language contained in Section 49-4-11, N.M.S.A., 1953 Compilation (P.S.):

"It shall be unlawful for any person, partnership, company, corporation or association to . . . affix any general design identical with or similar to such trade-name, trade-mark or label when not the first to employ and register the same." (Emphasis added).

There are no provisions for county registration; rather the registration provided for is with the Secretary of State. Consequently registration should be refused when there is already on file an identical or similar registered trade-mark or trade-name for the same type of business.

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.