1906-1908 Ind. Op. Att'y Gen. p. 145

TRADE MARK-STATE SEAL MAY NOT BE USED AS. April 3, 1907. Honorable Fred A. Sims, Secretary of State, Indianapolis, Indi- ana: Dear Sir-I am in receipt of your favor of March 21, asking whether a person, firm or corporation can register as a trade mark a design which includes the state seal: You enclose a sample, which consists of a circle about the circumference of which are the words, "Seal of Indiana Flour: Krome and Co." In the center is a picture suggestive of the seal of Indiana, the only difference being that the figure of a woodman is omitted. I am of the opinion that the state seal can not be registered as a trade mark, for the following reasons: First. It is a well recognized rule of law that " a geographi- cal term, by which is meant a term denoting locality, can not be exclusively appropriated as a trade mark or trade name, because such a term is generic or descriptive, and any one who can do so truthfully is entitled to use it." (28 Am. and Eng. Encyc. Law, p. 377; Paul on Trademarks, sec. 241, Hopkins on Trade Marks, p. 133). The use of the state seal upon a package of foodstuff would convey the impression that the same was an Indiana prod- uct, quite as strongly as if the words "Indiana Flour" were employed. As the latter could not be registered as a trade mark, neither could the pictorial equivalent, the state seal. Second. It is against public policy for such a use to be made of the seal. At the present time, when the matter of pure food products is being agitated, it would be deceptive for a concern to stamp its goods with the state seal, and circulate them with such as a registered trade mark. The purchaser, who might be insufficiently informed and who knew, only in a general way,. that the state maintained a laboratory where food products were analyzed, might well assume that goods bearing the state seal had been subject to inspection and had received the approval of the state. The secretary of state could properly -decline to place so effective a means of imposition in the hands of dealers. In Massachusetts a statute has been passed, making it a penal offense for any person to use the arms or great seal of the com- monwealth or any representation thereof for advertising or com- mercial purposes. This law has been upheld. See Com. v. Sher- man Co., 75 N. E. 71 (Mass. 1905). The same public policy which [10-19395] led the legislature of Massachusetts to make such use of the state seal a crime, justifies you in refusing to register the seal as a trade mark. Third. Section 8681 Burns' Stats. 1901, permits the filing of a trade mark by persons "who are entitled to the exclusive use of any lawful trade mark, label, brand, stamp or wrapper." Sec- tion 8682 provides for an affidavit from such applicant, stating that no other person, firm, corporation, etc., has the right to use said mark, stamp, or brand, either in the identical form or in any such near resemblance as might be calculated to deceive. The persons or firm submitting the trade mark in question could not truthfully make this affidavit; for they can not, in the nature of the case, have an exclusive right to employ the state seal. I do not consider that the minor change in the pictorial part of the seal alters the case. Around the circumference are the words "Seal of Indiana." This directs the attention to the pic- ture as a representation of the state seal; and the omission of a single element thereof is immaterial, so long as enough remains to-suggest the seal of Indiana to an ordinary observer. My opinion therefore is, the trade mark submitted should be refused registry. OFFICIAL SEAL-FACSIMILE MAY NOT BE USED. April 5, 1907. Honorable Z. T. Sweeny, Commissioner of Fisheries and Game, Indianapolis, Indiana: Dear Sir--I am asked, through Mr. Burford, if the commis- sioner of fisheries and game is required to attach his official seal to licenses issued to hunters, and if so, can he have a facsimile printed and use that instead of attaching his seal to each license 'issued? I find that the acts of 1905, page 731, being section 609 of that act defining public offenses, provides: "Such license shall have attached thereto a photograph of the applicant and shall contain a description of the age, height weight, complexion, color of eyes, * -- " and shall contain the signature and seal of the commissioner of fisheries and game." It is also provided that the person securing such license shall have the same in his possession at any time when he is hunting, ready to exhibit to the commissioner or any of his deputies.