Ohio State University recently made Intellectual Property headlines by managing to procure a trademark registration for the word THE. The registration procured by Ohio State covers t-shirts, caps, and hats. Although the registration covers limited goods and services, that hasn’t stopped people from being outraged by the idea that a person or entity can obtain exclusive rights to use of the most commonly used word in the English language. But is it really that big of a deal? In my humble opinion, it is not.
Before we get into the significance of OSU’s trademark application, I think it is important to provide some background information. After all, the historical background is material to understanding how OSU was able to obtain trademark rights in the word THE. For those of you who are not familiar with Ohio State’s use of the word THE, you need only turn on your television during football season to quickly learn just how significant the university’s use of the article really is. Almost every player from Ohio State University that plays in the NFL announces that he attended THE Ohio State University when introductions take place at the start of each game.
This tradition is longstanding and goes far beyond football. In fact, Ohio State University began using the article THE to differentiate itself from other institutions that shared its initials—OSU—such as Oregon State University and Oklahoma State University back in 1986. So, for at least 36 years, Ohio State has been utilizing the word THE with emphasis in a manner that has arguably turned the article into a designation of origin/source for the university. At least, that is what Ohio State University attested to in a declaration to the USPTO in response to an office action where the USPTO’s examining attorney had refused to register the mark because the examiner believed it was ornamental in nature, meaning that the use was decorative, not a designation of source.
With that in mind, we can return to the significance of this registration. While I agree that the registration of the word THE is a bit peculiar, I do not think it will create as many issues as some people may think. Ohio State now has the exclusive right to use the word THE in connection with specific goods and services. That does not preclude other parties from utilizing the word THE along with other words so long as the mark as a whole does not create a likelihood of consumer confusion. It also does not preclude other parties from utilizing the word THE in a non-trademark sense or on unrelated goods and services. Of course, with these established trademark rights, no one else will be able to create a shirt or hat featuring only the word THE, except for OSU.
In my mind, the registration could only become problematic if OSU polices its trademark rights in an overly aggressive matter. For example, if OSU sued The Alabama University at Birmingham for its use of THE, that would seemingly be frivolous litigation since the mark is patently unlikely to create consumer confusion. With that said, I do not think we will see Ohio State enforce its trademark rights in this manner. Whether that’s correct remains to be seen, but we will keep an eye on the situation.