Buckeye Controversy: THE Ohio State University Obtains “THE” Trademark RegistrationJune 27, 2022

As Sarah Luth discussed back in 2019, The Ohio State University (“Ohio State”) filed a trademark application with the United States Patent and Trademark Office for the word “THE.” Last week, the trademark was granted as U.S. Trademark No. 6,763,118.

At first glance, this seems absurd. The word “the” is one of the most used words in the English language. It has already been used nine times in this article alone! So how did this happen? And what does it mean?

First, it is important to understand what a trademark is and how it functions. At its most basic level, a trademark is a source identifier—a word, name, symbol, and/or device used to identify the source of goods or services and distinguish them from those offered by others. A common example is Apple computers. When a consumer goes to buy a computer labeled “Apple” (or bearing the Apple logo), they know the source of the product is Apple and not, say, Windows.

Ohio State believes the word “THE” accomplishes this very purpose. And it appears the USPTO agrees.

In support of their trademark application, Ohio State Assistant Vice President, Business Advancement, Trademark & Affinity Management Richard VanBrimmer explained that the word “THE” is “shorthand for The Ohio State University” and was “borne organically and from the culture of [Ohio State’s] students, athletes, and alumni that make up the membership of Ohio State.” VanBrimmer claimed the mark “became a permanent part of Ohio State’s culture amongst students and fans by the end of the century” and began to appear “as a standalone item on apparel and other products at least as early as 2005.” VanBrimmer referenced Ohio State’s history and archives and provided numerous unsolicited articles, blogs, posts, and comments demonstrating the function of the word “THE” as an indication of source for Ohio State.

Now does this mean an Ohio State attorney is going to come knocking on your door whenever you use the word “the”? Thankfully, no. Trademark rights only apply with respect to the goods and services sold under the mark. Apple, for instance, can prevent other manufacturers from selling computers using the Apple mark. They cannot, however, prevent the sale of entirely unrelated goods or services under the name “Apple.” Say, actual apples.

Ohio State’s “THE” trademark is registered for “[c]lothing, namely, t-shirts, baseball caps and hats; all of the foregoing being promoted, distributed, and sold through channels customary to the field of sports and collegiate athletics.” What this means is that Ohio State may have enforceable trademark rights against a third party selling clothing bearing a standalone “THE” (or something confusingly similar thereto) in traditional collegiate athletic channels of commerce. In other words, primarily against those selling unlicensed “bootleg” Ohio State apparel (which VanBrimmer noted as the reason for the trademark application). Everything else likely falls outside this registration.

For such a narrow trademark, this registration has caused quite a controversy. As with most trademark matters reported in the news these days though, the truth is a bit more mundane.

THE Nicholas J. Krob is an Associate Attorney in the TrademarkLicensing, and Litigation Practice Groups at McKee, Voorhees & Sease. For additional information, please visit www.ipmvs.com or contact Nicholas directly via email at nicholas.krob@ipmvs.com.

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