The Ohio State University Trademarks the Word “THE”

License to use trademark

The Ohio State University (OSU) did what most thought was the impossible—they trademarked the word “THE.” The word “THE” is universally used and is possibly the most famous determiner in the English language. Oxford Dictionary defines the article as “used to point forward to a following qualifying or defining clause or phrase.” How will OSU’s trademark of “THE” affect others’ use of this three-letter article in everyday language or commerce?

What is a trademark?

A trademark protects a person’s or entity’s distinctive word, name, logo, and/or symbol used to identify and distinguish their goods or services. A trademark is pivotal to the marketing and public relations aspect of a company’s goods, services, and business brand; specifically, it signals the goodwill and reputation of the associated entity. Other companies, entities, and persons are prohibited from using a trademark in relation to the sale of its respective goods or services. If a person uses a trademark without authorization from the trademark holder, then that person will be infringing on the holder’s intellectual property rights and likely face legal repercussions.

What goods or services are trademarked under “THE?”

            The Ohio State University trademarked the word “THE” for sport merchandise purposes.  This has sparked major controversy, given that the United States Patent Trademark Office (USPTO) denied fashion retailer Marc Jacob’s application to trademark the word “THE.” The USPTO denied the application in 2019 because it found the word “THE” as “ornamental” and “decorative in manner.”

How does that implicate other schools who want to use “THE?”

            This newly minted trademark can cause several issues for other schools who might want to use the word “THE” on their sports or collegiate merchandise. Several undergraduate universities utilize a version of “THE” in its name. From The John Hopkins University to The Carnegie Mellon University, universities, colleges, and institutions of the like may face future claims of trademark infringement as a result of this USPTO decision.

            These schools might have to pay royalties to OSU, decide to drop the word “THE” from its names, or negotiate a co-existence agreement. A co-existence agreement is very strategic in that it allows for different entities to use the same trademark, as long as both institutions are in agreement.

How might this trademark cause unnecessary future lawsuits?

            This decision might cause a lot of unnecessary future lawsuits from OSU against other institutions using the word “THE.” Should other entities use the word “THE” on their merchandise or in a commercial context that might cause likelihood of confusion with consumers, OSU might have a claim for trademark infringement on its hands. Accordingly, by claiming exclusive use of “THE” for sports and collegiate merchandise, OSU may open up the floodgates to countless trademark infringement cases.

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*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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