Updated: Jul 19, 2022
Last week, THE Ohio State University in Columbus, Ohio trademarked the word “THE” for use on all university and athletic apparel. This trend started in 1986, according to CNN. This occurred because Ohio State wanted to stop or move away from the “OSU” symbol. There are two other schools that use the “OSU” logo: Oklahoma State University and Oregon State University respectively. During Sunday Night Football games, the starters say their names and which universities or high schools they attended. Any former Buckeye usually states their name and THE Ohio State University.
Trademarks protect their owner and consumers. Trademarks include articles used or intended to use in commerce to distinguish goods. Trademark protection prohibits competitors from using marks where confusion could occur.
A mark can be arbitrary, suggestive, descriptive, or generic. Arbitrary bears no relation to the goods’ characteristics. Suggestive suggests the article’s characteristics. Descriptive describes its characteristics. Generic is the product’s common name.
Descriptive terms are protected if they acquire secondary meaning. Secondary meaning exists when the public interprets it as a representation origin. Factors determine secondary meaning, and there are eleven non-exhaustive factors. The factors that apply are name, exclusivity, and confusion.
Ohio State wants to protect its university and goods because the trademark “THE” is descriptive. The public interprets it as a representation origin. The factors that apply in their case are the name of the university and apparel, exclusivity to Ohio State, and it avoids confusion because by trademarking the word “THE," it is a reference to Ohio State The word “THE” is in all capital letters because the players put an emphasis on it. This trademark battle started in 2019 when Ohio State filed a trademark application for it. Ohio State University argued the word “THE” is a rallying cry for the university, and it has been for many years. The possible hiccup in the university’s application for the trademark with the U.S. Patent and Trademark Office was that fashion designer Marc Jacobs filed to trademark the same word, according to CNN.
In 2021, Ohio State University and Marc Jacobs reach an agreement. It allows both parties to register “THE” branded products for continuous use and license, according to Ohio State spokesperson Ben Johnson.
Ohio State worked to protect its brand and trademarks because this asset benefits students and faculty, and it supports the university’s core academic mission, which is teaching and research. This trademark and licensing program generate more than $12.5 million in revenue, which funds university programs and student scholarships, according to Johnson.
This trademark battle was similar to Texas A&M University trademarking the 12th man, after the NFL’s Seattle Seahawks tried to trademark it themselves back in the 2010s. Another recent battle was between two universities, South Carolina and Southern California, when both schools tried to trademark the interlocking SC logo in the 2010s, according to herrick.com.
These trademark battles may seem silly, but they protect products and entities from confusion. The trademark allows for these products and entities to “mark” themselves from other products and entities that are similar to those products.
Alex Patterson is a 3L at Thomas M. Cooley Law School in Lansing, Michigan. He played football for seventeen years as an offensive and defensive lineman. He graduated from Lindenwood University-Belleville in 2018 with a Bachelor’s in Sports Management. He can be followed on Twitter @alpatt71.