What “THE”?!?

"THE" Ohio State

The Ohio State University (OSU) just keeps winning, to the dismay of one author here who graduated from its main rival.  On Tuesday, OSU was awarded a trademark for the word “THE” after a nearly three-year battle with the United States Patent and Trademark Office (USPTO).

Trademarks designate the source of goods and services and therefore must be distinctive and used in a distinguishable manner. In support of its trademark application, OSU initially submitted a t-shirt with the word “THE” on its front as a specimen.  But the examining attorney refused the registration on the basis that the mark was “merely a decorative or ornamental feature” and therefore not sufficiently distinctive or otherwise used in a trademark sense.  The examining attorney took issue with the large size and central placement of the mark.

OSU responded with a substitute specimen with “THE” on a label inside a t-shirt.  OSU also argued that “THE” is “not merely ornamental” but instead has secondary meaning to consumers created by OSU’s “use and emphasis on the word ‘THE’…[as] a deliberate, integral, and important element of [its] identity and history.”  The USPTO agreed and published the mark for opposition.

During the process, OSU separately opposed an application for a “THE” mark sought by Marc Jacobs.  However, the parties quickly settled leading both parties to narrow the scope of goods covered by their respective marks.  OSU’s mark covers clothing “promoted, distributed, and sold through channels customary to the field of sports and collegiate athletics” while Marc Jacobs narrowed its application to cover clothing “promoted, distributed, and sold through channels customary to the field of contemporary fashion.”

As a result, “THE” was official registered as a trademark on June 21, 2022.  The University of Michigan (UM or known by some as That Team Up North), salty over OSU’s winning ways according to one author here but with its usual craftiness according to the other author, shot back tweeting that it may pursue a trademark for “OF.”  The best rivalry in sports has just been taken to another level.  Will we be hearing the chants of “THE!” and “OF!” from the Horseshoe in November?  Expect to see “TM” used next to “OF” by the Maize and Blue in the coming months and perhaps one day “OF®” on a UM t-shirt.  Too bad OnlyFans has already locked up the “OF.COM” URL.