August 16, 2019
By Larry Brocchini
When my college-bound son asked me if the word “THE” could be trademarked, I wondered if my love for IP law had rubbed off on him. Turns out, his curiosity was driven by his passion for sports, not trademarks. Specifically, Ohio State University (an institution my son is genetically required to revile, given the three years his dad spent on the Law Quad in Ann Arbor, home of OSU’s archrival Michigan) has filed Application No. 88571984 with the U.S. Patent and Trademark Office to register “THE” as a trademark on apparel. Not any particular font or fanciful design of “THE” word. Just “THE.”
For those unfamiliar with college sports, Ohio State, originally founded in 1870 as the Ohio Agricultural and Mechanical College, officially became “The Ohio State University” in 1878. OSU, its sports teams and zealous alums unceasingly (and annoyingly to those not of Buckeye Nation) correct anyone daring to disrespect the Scarlet and Gray by forgetting to use “THE” when referencing the hallowed institution. So, the Buckeyes deem the definite article, at least as used in conjunction with their school’s name, to be an important part of OSU’s identity. On that basis, it seeks trademark protection for shirts and hats (ostensibly in the school’s colors) emblazoned with “THE.” OSU’s application follows a trend in sports and entertainment to seek protection for all variety of phrases and words in connection with future branding efforts.
Has Ohio State fumbled this one? Or will Brutus Buckeye be able to move the school’s application into the end zone at the PTO? It seems doubtful. A trademark is generally a word, phrase, symbol, design, or a combination, that identifies and distinguishes the source of the goods of one party from those of others. Trademarks are intended to protect brand identity, not allow monopolization of the building blocks of language. While Ohio State clearly can protect “THE” in the context of the name “THE Ohio State University,” “THE” is not—and because of its common usage, likely could not become—a brand identifier for the institution.
And if Ohio State’s “Hail Mary” application is approved, what’s next? Indefinite articles? Prepositions? Indeed, archrival University OF Michigan, has derided the OSU application by mockingly asserting proprietary rights over the word “OF.”
Score a small satirical victory for the Wolverines, although admittedly that will be little comfort if the Maize and Blue don’t reverse the trend on the football field in “The Game” (Michigan vs. OSU football) at the “Big House” (Michigan Stadium, capacity over 115,000 fans) this coming Thanksgiving weekend.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. If you need assistance with a particular IP, commercial or employment issue, including concerning trademark-related issues, Larry Brocchini would be pleased to consider providing additional details or advice about specific situations.