“The” is the most commonly used word in the English language. However, “trademarks” and “common” are not typically synonymous; rather, a trademark “is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” So how could anyone imagine that the most commonly used word could, in fact, distinguish or identify the source of goods to any degree? Well, if anyone was able to trademark “The”, the most commonly used word in the English language, it may just be “THE” Ohio State University, who applied to register “The” on August 8, 2019.
College football fans know it well – Buckeyes football players don’t play simply for Ohio State University; rather, they play for THE Ohio State University. For years, Ohio State’s football team has solidified itself as one of the top programs in the country. Fans and players alike take great pride in that success, and as an homage to Ohio State’s formal name, “The Ohio State University,” they have taken to emphasizing the “THE” when verbalizing the school’s name. For example, if anyone has watched an NFL game where the players on the broadcast announce what college they attended, former Buckeyes players announce their alma mater as “THE” Ohio State University.
Importantly, Ohio didn’t attempt to simply trademark the use of “The” in all shapes and forms, but instead sought to register “The” as a standalone brand for apparel. In fact, even prior to registering for the mark, Ohio State sold T-shirts and other apparel with “THE” printed on it. One would imagine that, many onlookers, when they see the emphasized “THE” accompanied with the school’s red and silver colors, may find themselves thinking of the Ohio State Buckeyes. Similarly, one could argue that, in at least a football setting, when someone says or writes “THE” with extra emphasis, most observers would expect “Ohio State University” to follow.
But, even considering these unique indicators, the USPTO refused to register “The” as a trademark—at least for now. In issuing its decision, the USPTO refused registration “because the applied-for mark as used on the specimen of record is merely a decorative or ornamental feature of applicant’s clothing, and, thus, does not function as a trademark to indicate the source of applicant’s clothing and to identify and distinguish applicant’s clothing from others.” Ohio State, however, still has an opportunity to amend its application, and may be granted a trademark if it can prove that its “extensive use and promotion of the mark allowed consumers now directly to associate the mark with [Ohio State] as the source of the goods.”
So, for at least the time being, “The” remains a non-trademarked term—which is a relief, as I used “the” 47 times in this post alone.