4 TAC §§17.51, 17.52, 17.54, 17.56, 17.59
The amendments to §17.51-17.52, §17.54 and §17.56
and new §17.59 are adopted under the Texas Agriculture Code, §12.0175,
as amended by HB 1858, which authorizes the department to establish by rule
programs to promote and market agricultural products and other products, grown,
processed or produced in the state and to charge a membership fee for participation
in such programs.
§17.52.Application for Registration To Use the TAP, Taste of Texas, Vintage Texas, Texas Grown, Naturally Texas, or GO TEXAN and Design Mark.
(a)
No person shall use, employ, adopt, or utilize the TAP,
Taste of Texas, Vintage Texas, Texas Grown, Naturally Texas, or GO TEXAN and
Design mark, unless prior application for registration or licensing has been
made to the department and permission to make such use, employment, adoption,
or utilization has been granted.
(b)
Unless permission is otherwise granted by the department,
the GO TEXAN and Design mark may only be used by registrants and licensees
to certify and promote the following Texas agricultural products:
(1)
agricultural products produced in Texas;
(2)
agricultural food products processed in Texas, regardless
of origin, and unprocessed agricultural food products grown in Texas. A food
service company, including a restaurant, is not eligible for membership unless
it processes a packaged product for resale, in which case, the mark may only
be used to promote the specific program-eligible products. Food service companies
or restaurants may not use the mark in any general fashion to promote the
business or its services;
(3)
wine which is:
(A)
at least 75% by volume, derived from grapes grown and fermented
in the State of Texas; and
(B)
fully produced and finished within the State of Texas;
(4)
Texas-grown nursery, floral, and forestry products;
(5)
leather, textile, or apparel products approved by the commissioner
as being:
(A)
composed of 50% or greater natural fibers derived from
crops or livestock grown or raised within the State of Texas, the identity
of the fibers having been preserved throughout processing so as to be verifiable
by satisfactory documentation as having originated in Texas; or
(B)
composed of 50% or greater natural fibers, regardless of
where grown or raised, which have been processed into leather, textile, or
apparel products within the State of Texas in a manner which substantially
changes their form, and, if composed of natural fibers derived from crops
or livestock grown or raised outside the State of Texas, the natural fibers
must be of a type commercially produced within the State of Texas;
(6)
horticulture product(s);
(7)
lamb or goat meat(s). In order to be certified as "GO TEXAN"
lamb or goat meat(s), lamb or goat meat(s) must be from a lamb or goat that
has been fed in Texas for at least 30 days and:
(A)
be from a lamb or goat that has been slaughtered in Texas;
or
(B)
be from a lamb or goat slaughtered and fabricated in Texas;
(C)
for purposes of this paragraph, "fabricated" shall be defined
as the process of taking a carcass and cutting the carcass into wholesale
or retail cuts of meat;
(8)
livestock or poultry feed(s), feed supplement(s) and pet
food(s);
(9)
fish, shellfish, or other aquatic species in their raw
form or processed form;
(10)
natural fiber(s);
(11)
natural wood(s);
(12)
processed food product(s);
(13)
processed natural fiber and natural wood product(s);
(14)
wildlife processed for food or by-products;
(15)
equine species; and
(16)
Texas processed agricultural product(s).
(c)
The Texas Agricultural Product, Taste of Texas, Vintage
Texas, Texas Grown, and Naturally Texas marks shall only be used by program
members to identify products meeting the requirements for membership for those
programs prior to May 23, 1999 as follows:
(1)
for the TAP mark, for products identified in subsection
(b)(1) of this section;
(2)
for the Taste of Texas mark, for products identified in
subsection (b)(2) of this section;
(3)
for the Vintage Texas mark, for products identified in
subsection (b)(3) of this section;
(4)
for the Texas Grown mark, for products identified in subsection
(b)(4) of this section; or
(5)
for the Naturally Texas mark, for products identified in
subsection (b)(5) of this section.
(d)
Applications submitted under this section shall be made
in writing on a form prescribed by the department. Application forms may be
obtained by contacting the Texas Department of Agriculture Marketing and Promotion
Division at P.O. Box 12847, Austin, Texas 78711, phone (512) 463-7624.
(e)
Applications shall be submitted to the assistant commissioner
for Marketing and Promotion, Texas Department of Agriculture, P.O. Box 12847,
Austin, Texas 78711.
(f)
If approved, applicants shall remit the required registration
fee within 30 days of notification of approval.
(g)
Upon receipt of the registration fee, the department shall
mail to the registrant or licensee a certificate of registration, which shall
expire on August 31 following the year of issuance. The department shall also
enclose copies of the mark, suitable for reproduction. If the certificate
is for less than one full year, registration fees will be assessed on a pro
rata basis.
(h)
Other than the use of the mark, no registrant or licensee
shall use any statement of affiliation or endorsement by the State of Texas
or the department in the selling, advertising, marketing, packaging, or other
commercial handling of TAP, Taste of Texas, Vintage Texas, Texas Grown, Naturally
Texas, or GO TEXAN products.
(i)
Registrants and licensees shall indemnify and hold harmless
the commissioner, the State of Texas, and the department for any claims, losses,
or damages arising out of or in connection with that person's advertising,
marketing, packaging, manufacture, or other commercial handling of TAP, Taste
of Texas, Vintage Texas, Texas Grown, Naturally Texas, or GO TEXAN products.
(j)
Any permission under the certificate of registration granted
to a registrant to use the mark shall be nonexclusive and nontransferable
for the products listed in the application.
(k)
Registrants shall do nothing inconsistent with the ownership
of the mark in the department, and all use of the mark by any registrant shall
inure to the benefit of and be on behalf of the department. Further the registrants
shall not have any right, title, or interest in the mark, other than the right
to use the mark in accordance with the certificate of registration. Registrants
must agree not to attack the title of the department to the mark, or attack
the validity of the certificate of registration or the permission granted
by the department.
(l)
The nature and quality of the goods sold by registrants
in connection with the mark shall conform to any standards which may be set
from time to time by the department. Registrants shall cooperate with the
commissioner by permitting reasonable inspection of the registrant's operation
and supplying the commissioner with specimens of use of the mark upon request.
Registrants shall not use the mark on goods sold or marketed as products from
another country or state, or as products from a city or region outside of
Texas, unless prior written authorization is received from the department.
(m)
Registrants and licensees shall comply with all applicable
laws and regulations and obtain all appropriate governmental approval pertaining
to the selling, advertising, marketing, packaging, manufacturing, or other
commercial handling of the products covered by the certification of registration.
(n)
Registrants shall use the mark only in the form and manner,
and with appropriate legends, as prescribed from time to time by the commissioner.
Registrants shall affix on all product(s) bearing the mark the following legal
notice: GO TEXAN and Design is a certification mark of the Texas Department
of Agriculture.
(o)
The department shall have the sole right and discretion
to bring infringement or unfair competition proceedings involving the TAP,
Taste of Texas, Vintage Texas, Texas Grown, Naturally Texas, or GO TEXAN and
Design marks.
(p)
The department may consider in its evaluation of an applicant
or registrant any information regarding an applicant or member that could
impair the department's efforts to promote the development of markets for
Texas agriculture and other products.
(q)
The consideration of information as provided in subsection
(p) of this section may include consideration of any information that may
not enhance the integrity and positive image of the program, including, but
not limited to, a review of criminal information, as allowed by applicable
laws and regulations.
§17.54.Denial of Application to Use the TAP, Taste of Texas, Vintage Texas, Texas Grown, Naturally Texas, or GO TEXAN and Design Mark.
An application for registration or license to use the TAP, Taste of
Texas, Vintage Texas, Texas Grown, Naturally Texas, or GO TEXAN and Design
mark may be denied if:
(1)
application is not made in compliance with 17.52 of this
title (relating to Application for Permission To Use the TAP, Taste of Texas,
Vintage Texas, Texas Grown, Naturally Texas, or GO TEXAN and Design mark;
(2)
the applicant cannot provide adequate assurances that the
product for which application is made qualifies and will continue to qualify
for the program(s) in which it is enrolled;
(3)
the product is of a quality markedly inferior to that representative
of similar products produced in Texas;
(4)
the applicant has misused the TAP, Taste of Texas, Vintage
Texas, Texas Grown, Naturally Texas, or GO TEXAN and Design mark prior to
the date of application; or
(5)
applicant's use of the TAP, Taste of Texas, Vintage Texas,
Texas Grown, Naturally Texas, or GO TEXAN and Design mark would either:
(A)
impair or frustrate the department's efforts to expand
or encourage development of the markets for Texas agricultural and other products;
or
(B)
fail to enhance the integrity and image of the program,
as determined by the department; or
(6)
for reasons of policy, as determined by the department.
§17.56.Termination of Registration To Use the TAP, Taste of Texas, Vintage Texas, Texas Grown, Naturally Texas, or GO TEXAN and Design marks.
(a)
Registration to use the TAP, Taste of Texas, Vintage Texas,
Texas Grown, Naturally Texas, or GO TEXAN and Design mark may be revoked at
any time if the mark is misused.
(b)
Misuse of the TAP, Taste of Texas, Vintage Texas, Texas
Grown, Naturally Texas, or GO TEXAN and Design mark includes, but is not limited
to:
(1)
use of the mark in the selling, advertising, marketing,
packaging, or other commercial handling of a product for which registration
to use the mark has not been granted by the department;
(2)
use of the mark in the selling, advertising, marketing,
packaging, or other commercial handling of a product which is of a quality
markedly inferior to that representative of similar products produced in Texas;
or
(3)
use of the mark would either:
(A)
impair or frustrate the department's efforts to expand
or encourage development of the markets for Texas agricultural and other products;
or
(B)
fail to enhance the integrity and image of the program,
as determined by the department
(4)
use of the mark in a manner violating any rule promulgated
by the commissioner.
(c)
Proceedings for the revocation of registration to use the
TAP, Taste of Texas, Vintage Texas, Texas Grown, Naturally Texas, or GO TEXAN
and Design mark shall be conducted in the manner provided for contested cases
by the Administrative Procedure Act, Texas Government Code, Chapter 2001,
and Chapter 1 of this title (relating to General Practice and Procedure).
(d)
A proceeding for revocation of registration to use the
TAP, Taste of Texas, Vintage Texas, Texas Grown, Naturally Texas, or GO TEXAN
and Design mark shall not preclude the commissioner from pursuing any other
remedies, including, where applicable, the penal and injunctive remedies provided
for by law.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 16, 2004.
TRD-200400350
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective date: February 5, 2004
Proposal publication date: December 5, 2003
For further information, please call: (512) 463-4075
Subchapter G. GO TEXAN PARTNER PROGRAM RULES
4 TAC §17.304
The amendments to §17.304 are adopted under the Texas
Agriculture Code (the Code), §46.012, which authorizes the department
to adopt rules to administer the Code, Chapter 46, relating to the GO TEXAN
Partner Program, including rules for the use of the GO TEXAN logo. .
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 16, 2004.
TRD-200400351
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Effective date: February 5, 2004
Proposal publication date: December 5, 2003
For further information, please call: (512) 463-4075