If you’ve ever watched Monday Night Football, you have probably heard former Ohio State football players proudly announce their school as “The Ohio State University,” with an emphasis on the word “the,” pronounced with the long “e” like “thee.”
That simple article has become part of Ohio State’s culture, and the university has successfully registered a trademark for “THE.” The trademark, which was initially applied for in August, 2019, took three years to get approved and will apply to any application on clothing and apparel.
So, while the Buckeyes don’t own the word “the,” it is one of the more unique trademarks.
Josh Gerben is a trademark attorney and founder of Gerben Intellectual Property in Washington, D.C., who noted it is common for universities to protect their logos and emblems, but it is highly unusual to trademark such a vague word.
“You can’t own the word for everything, so they don’t own the word,” Gerben said. “This was something that apparently they felt was important enough to spend the time and energy on to register and ultimately be able to police the marketplace from anybody that might be using the word as branded clothing.”
Apparel brand Marc Jacobs had also applied for a trademark for the word, so it’s possible, according to Gerben, that Ohio State was taking a defensive position by also applying for the trademark. If Marc Jacobs were to have gotten the trademark, they would have had the authority to ask Ohio State to stop using it on their apparel.
“On the other side of it, sometimes you see folks file trademark applications for things they might not have tried to register before because they see the mark being used in the marketplace,” Gerben said. “It’s kind of common for folks to go online and try to sell knockoff goods with university logos and catch phrases and things like that. Even at the professional level, you’ll see people selling those kind of items and so they might get a trademark registered so that they can go to platforms like Etsy or Amazon or wherever the items are being sold, and have those listings removed.”
It doesn’t take away from the fact that it is unique to trademark this word.
As is the case with everything in college football, rivalries got involved. When it was first announced that Ohio State was applying for the trademark in 2019, the University of Michigan’s twitter account poked fun at the idea by posting a picture of the word “of” with a TM as the caption.
Gerben said you would be hard-pressed to find another trademark application by a university on a word like this and that universities are usually focused on names, logos and slogans.
Even so, getting the trademark issued does not guarantee that Ohio State will be the only university that can use “THE” on apparel. For the first five years that any trademark is registered, another party can counter with a petition for cancellation on the grounds that this doesn’t function as a trademark.”
There’s an argument in the trademark community that words like this might not operate as trademarks,” Gerben said. “In other words, a trademark is supposed to identify the source of a product. So, if you see Nike on the side of a box, you know that Nike Inc. has made that shoe and there is an argument to be made there, if someone wanted to.”
It seems unlikely anyone would challenge Ohio State for use of the word, and while the university doesn’t technically own the word, it can now say it has one of the most unique trademarks in sports.
