“The” Ohio State Tries to Trademark the Word “THE”August 15, 2019

On August 8, 2019 The Ohio State University filed a trademark application with the United States Patent and Trademark Office for the word mark “THE” to be used in connection with clothing, namely “t-shirts, baseball caps and hats.” Unlike Ohio State’s other trademark applications, which cover the phrase “The Ohio State University” as a whole, the August 2019 application covers only the word “THE.”

A trademark is a word, phrase, symbol and/or design that identifies the source of goods or services and distinguishes the goods or services from those of others. A registered trademark must be distinctive, i.e. it may not be simply descriptive of traits or qualities of the goods/services. The public policy rationale against descriptive marks is that others in the industry should not be excluded from using descriptive terms to advertise for their own goods. For example, a trademark should not be granted for the word “ice cream” in connection with an ice cream shop, as others who sell ice cream would not be able to describe their product without trademark infringement.

In the case of The Ohio State University, it appears Ohio State sells apparel featuring simply the word “THE,” for example a t-shirt with the word “THE” printed in Ohio State colors. The word “THE” has historical significance for The Ohio State University. According to the University archives, in the mid-1980s, there was an attempt to move away from an “OSU” identifier in order to “reflect the national stature of the institution.” University officials wanted the institution to be known as ‘The Ohio State University’ again since OSU could also mean Oregon State and Oklahoma State University. According to legend, “’The’ was used to show the other colleges which institution was supposed to be the leader in the state – both in size and in financial support from the legislature.”

It may not be common to print apparel featuring only the word “THE.” However, “the” is one of the most commonly used words in the English language and it is frequently used in connection with other text on apparel (for example, here, here, and here). In order to obtain a trademark, The Ohio State will need to make a strong showing of secondary meaning, and demonstrate that the mark “THE” is distinctive in connection with apparel.

Sarah M. Luth is an Associate Attorney in the Biotechnology & Chemical Patent Practice Group at McKee, Voorhees & Sease. For additional information, please visit www.ipmvs.com or contact Sarah directly via email at sarah.luth@ipmvs.com.