California Intellectual Property Blog


Ohio State Attempts to Trademark “The”

Los Angeles – Ohio State University has been calling itself “The” Ohio State University for quite some time. “The” appears on all published materials, such as the school’s seal, logos, and most of their promotional material. Recently the college decided to take the next step with “The” by filing a trademark application – for that word alone.

And so in the beginning of August, Ohio State filed U.S. Trademark Application Serial number 88571984 with the U.S. Patent and Trademark Office (USPTO) to trademark perhaps the most familiar three-letter word in the English language – The.

“The” application claims a 2005 date of first use and is filed in relation to Class 025 for “Clothing, namely, t-shirts, baseball caps and hats.” “The” current strategy in using “the” phrase is to brand products with the word “The” in big, bold letters, with the smaller Ohio State University logo beneath it.

So far, “The” effort to trademark “The” has not been very good. The trademark application has already received an office action due to a prior filed application for “The” and because the specimen of use was not acceptable. When filing a trademark for use in relation to apparel, the specimen of use must show the trademark on a label or hand tag. Instead, Ohio State submitted a specimen showing “The” simply on the front of a shirt which is not sufficient to be considered trademark use. As for the prior filed application, amazingly Ohio State was not the first to file a trademark application for “The” for apparel.

In May of 2019, Marc Jacob the apparel company filed a trademark application for “The” for apparel in Class 025 and bags in Class 028. Unfortunately, Marc Jacobs is also having problems trademarking “The”. The company is currently dealing with a failure to function refusal which is basically the examiner saying that consumers are not likely to see and understand “The” as a trademark designating the source of goods. Since Marc Jacobs filed first, if it can clear the failure to function hurdle its application will be approved and Ohio’s States would be denied. In that case, Ohio State would likey file an Opposition to the Marc Jacobs application due to Ohio State’s earlier alleged date of first use. Perhaps the Marc Jacobs application is the reason that Ohio State filed its “The” application in the first place.

Ohio State University is no stranger to working through trademark roadblocks, or to filing trademark applications. In 2017, the school attempted to trademark the term “OSU” but met with opposition from Oklahoma State University. The two schools found common ground and signed a consent agreement allowing both schools to use the “OSU” acronym on a national basis. As for overall trademark filings, a search at the trademark office shows no less than 225 trademark applications filed by “The” university.


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