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Ohio State University Wants to Trademark the Word "The"

By Jeremy Conrad, Esq. on August 20, 2019

Trademarks are used to distinguish one product from another in the marketplace. A recent trademark application by the Ohio State University proposes that nothing says OSU like the letters THE. The university has a scheme to market t-shirts, hats, and other items with the innocuous word “The” in bold capital letters and a small version of the university logo underneath.

Josh Gerben, the Washington, D.C. trademark lawyer who unearthed the application, has suggested that the application will likely be denied by the US Patent and Trademark Office, at least initially, because it may be unclear that the word is being used to identify the products. Just putting the word “THE” on a shirt or hat isn’t typically enough, though OSU spokesman Christopher Davey says that the school intends to use the mark in ways that clearly signify association with Ohio State and its brand.

Competition

OSU may face some competition in seeking to trademark one of the most common words in the English language. Fashion designer Marc Jacobs has a trademark application already in place with the USPTO for the use of the word “The” for apparel. His application got preliminary approval, but it still under review. If the usage of the mark is approved, the Mark Jacobs company will have priority over OSU.

Ohio State has a history of fighting over little words. The university tried to trademark “OSU” in 2017 and ran into objections from Oklahoma State University, which also like to call itself OSU. The two companies ended up signing an agreement that allowed them both to use the acronym.

The school has also trademarked the word “Ohio.” No indication of whether they intend to trademark the words “State” or “University,” though given their latest move both seem likely candidates.

Practical Considerations

Strong trademarks tend to be unique and closely associated with the producer of the goods. Intellectual Property fever might lead companies to file applications for increasingly generic terms, and the USPTO might be willing to grant their applications, but enforcement is a different matter altogether. Even initially unique marks such as Scotch Tape and Xerox Copiers have run up against enforcement issues based on the generic usage of their marks.

Companies have expended considerable resources working to ensure that their trademarks do not become generic. Adobe would prefer that we not say that digitally altered images have been “photoshopped,” Google wants publications to refer to “web searches” rather than shorthand the act as “googling,” and Lego has engaged in campaigns to ensure that consumers refer to their toys as “Lego bricks” rather than simply calling them Legos, hoping to prevent the genericization of their brand.

OSU says that it filed the trademark application in order to protect assets of significant value. Safeguarding those assets might better be accomplished by establishing a more unique trademark, but the Buckeye motto is “With God, all things are possible,” so maybe their plans involve seeking protection from a higher power than the US Trademark office.

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