By Thomas Dunlap

Partner at Dunlap Bennett & Ludwig


[08/15/2019 Leesburg]  “The” Ohio State University is trying to own the “The” as a protected trademark for its school merchandise. The Buckeyes are trying to lay claim to, quite literally the most common article word used in the English language. No matter how much you are, or are not a fan of its fans, OSU’s trademark registration effort has some interesting implications and faces some challenging issues.

The trademark application, filed August 8, 2019, is a so-called “standard character mark” application, which means there is no claim made to a color, or font, or anything but THE. While this has made national news, in the legal trademark context it is not quite as huge a stretch as one might think.

As a starting point, any trademark registration is only tied to the goods or services for which its proponent offers to the public in the “relevant marketplace”. This means two companies can have similar, or even the same trademarks if they do not cross paths in the same consumer marketplace. A pool company selling pool installation services called DEEP WATERS, could hold the same trademark as a cloud-based online storage company of the same name.

In other words, even is Ohio State University succeeds in obtaining the “THE”, it is only locking up and claiming ownership to the mark in the context of apparel, and not, as some of the sensationalized reports in the national news might have you believe, in every use of the word “THE”.

I would note – that the application’s specimen is the kind we see refused all THE time. It is a t-shirt with the letters “THE” on the front. To show use in commerce as a source or origin of goods OSU has to submit a specimen showing a label or tag as the brand – not as an ornamental decoration of the front of a t-shirt. While this is probably a simple fix if OSU truly intends the mark as a source for the apparel, it will be interesting to see what the USPTO examiner finds for conflicts with existing uses of the word “THE” in thousands of other marks in the same space.

Posted in: Intellectual Property, Trademark

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