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“The” Limits to Trademark Protection

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Last month, another interesting development occurred in the wide world of sports and trademarks. The Ohio State University filed a trademark application for the word “The.”

If you have ever been around a Buckeye during a football game, you know The Ohio State University fans are pretty particular about the presence of the word “The” in the name. However, it looks like the school is considering taking its commitment to the revered article to the next level by introducing a line of “THE” clothing.

Most likely, the application will be denied for a couple of reasons. First, simply putting a word or phrase on apparel doesn’t trigger the need for a trademark. Remember, a trademark is an intellectual property right reserved for marks that identify the source of a particular good and distinguishes the goods of one seller from another. It’s more likely that the brand name placed on the label of a shirt could be trademarked than the image or text on the shirt itself.

Second, there is a trademark guideline (TMEP 1202.04) that restricts the application of trademark protections on marks that are “merely informational.” Basically, this guideline says, if a consumer were to perceive this mark as simply, in context of how it’s being used, describing the nature of the good, it’s a no go. “Because the function of a trademark is to identify a single commercial source for particular goods or services, if consumers are accustomed to seeing a term or phrase used in connection with goods or services from many sources, it is likely that consumers would not view the matter as a source indicator for goods or services,” explains the guideline. Probably, there is no more common word used in connection with goods from many sources than the word, “The.”

A fly in THE university’s ointment may be Marc Jacobs, as strange as that may seem. Marc Jacobs applied and was approved with a trademark application for “THE,” as in THE BACKPACK MARC JACOBS. The application is still under review, but it could take priority over The Ohio State University’s application because it was filed first.

In a press release about the USPTO application, The Ohio State University’s spokesperson argued that the school “works to vigorously protect the university’s brand and trademarks.” Indeed they do. The university has trademarked the names of former coaches Urban Meyer and Woody Hayes. In 2017, The Ohio State University tried to trademark the moniker “OSU,” only to have its application challenged by Oklahoma State University, which uses the same acronym.

We will keep an eye on this one to see how things shake out for The Ohio State University. In the meantime, if your brand needs protecting with a trademark (even one that may seem a little iffy at first), click here to schedule an appointment with The Brand Protected ®. We are here to help!

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