- We tried to write this article without saying “the” but it was just too darn difficult.
The word “the” is the single most common word in the English sentence. In every body of text written in English, roughly 5% of the words will be “the.”
So, it’s safe to say it’s a very common word. And now it’s a trademark of Ohio State University (OSU).
Although the university doesn’t exactly own the word, they now have the exclusive right to use it commercially. At least on sports apparel.
THE has become a popular slogan for OSU’s college football team, the Ohio State Buckeyes. The team players proudly declare that they’re from “THE Ohio State University,” with the article pronounced as “thee.”
According to the registration certificate from the U.S. Patent and Trademark Office, OSU can control how the word “the” is used on “Clothing, namely, t-shirts, baseball caps, and hats; all of the foregoing being promoted, distributed, and sold through channels customary to the field of sports and collegiate athletics.”
Not only that, the trademark doesn’t concern any specific logo or style — simply the successive letters, T, H, and E.
“The mark consists of standard characters without claim to any particular font style, size, or color,” the certificate reads.
Not the First to Try
OSU’s trademark on the word “the” has been a long time coming. The school originally applied for the trademark three years ago in 2019.
But they weren’t exactly the first to try and register “the” as a trademark. Trademark attorney Josh Gerben delved into the registration process in a Twitter thread.
OSU originally filed for the trademark in retaliation. Several months before OSU’s application, the clothing company Marc Jacobs had applied for a trademark on “the.”
Man, this article is getting really confusing to write… Anyhow, moving on.
If you put things in context, it makes sense why OSU would want to trademark the most common English word. After all, according to OSU senior director of media and PR Ben Johnson, the school makes a sweet $12.5 million every year from “the” licensing deals.
Had Marc Jacobs snatched the trademark, that would’ve thrown a serious spanner into OSU’s works. Gerben says the company could’ve stopped OSU from selling “THE” branded clothes. So, they’re not trying to trademark “the” just for the sake of it.
Still seems kind of strange, but hey — we’re not intellectual property lawyers.
OSU’s first attempt to trademark “the” didn’t exactly go as planned, though. According to Gerben, the Patent Office rejected their application.
First, the office argued that OSU’s use of “the” was “merely ornamental.”
“Registration is refused 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,” the Patent Office said in a response.
Additionally, they couldn’t give OSU the trademark because Marc Jacobs had applied for it first.
So, OSU had two hurdles they needed to clear. They decided to start by wrangling with Marc Jacobs.
And it did take some wrangling, but the two finally reached an agreement in August 2021. Based on the deal, both Marc Jacobs and OSU are allowed to use “the” in their branding.
The deal works for both — after all, they aren’t exactly competitors. OSU wants to use “the” on sports clothing, while Marc Jacobs focuses on fancy purses, shoes, and fashion clothes.
We couldn’t find out how OSU cleared up the problem of ornamental use. Gerben says that the university simply addressed it, somehow.
But there we go. Now OSU has trademarked the word “the.”
But what does any of this ultimately mean? Is every other clothing company now barred from using the word “the” in any way or form on their items?
That seems unlikely. According to Gerben, OSU is more likely to go after vendors selling knock-off “THE” branded sports clothes that are clearly targeting fans of the Buckeyes.
“Sometimes you see folks file trademark applications for things they might not have tried to register before because they see the mark being used in the marketplace. It’s kind of common for folks to go online and try to sell knock-off goods with university logos and catchphrases and things like that,” Gerben told ESPN.
Despite that, it’s still unusual for anyone to trademark such a common word. And OSU isn’t yet perfectly in the clear.
According to trademark law, other parties could file a counterclaim to cancel the registration. They’d have to prove that the word just doesn’t function as a trademark, which could well happen.
“There’s an argument in the trademark community that words like this might not operate as trademarks,” muses Gerben. He does point out that it’d be unlikely for anyone to challenge the trademark, though.
This isn’t the first time OSU has tried to register common linguistic features as its own. In 2019, the university went to court trying to trademark the letter O.
What’ll they try to trademark next? The word “is”?