College football season is upon us, and The Ohio State University is in the hunt for the playoffs. As good as they have been on the field, the school’s first win came before the season started. In June, the United States Patent and Trademark Office granted Ohio State an unusual trademark: the word “The.”

For those unfamiliar with Ohio State, the attempt to claim ownership of a definite article may seem absurd, but the word “The” holds a special place in the heart of Buckeyes everywhere. While it has been a part of the school’s name since 1878, the university made a push in the 1980s to emphasize the word “The” as part of the college’s brand and to distinguish it from other OSU colleges such as Oregon State University and Oklahoma State University. Since then, the word has appeared on Ohio State merchandise, promotional materials, and is emphasized in the pre-game introductions of Buckeyes competing in professional sports. The school’s first application for the trademark was denied, since the USPTO was skeptical that the word was being used as an indication of source, but their second attempt was approved after demonstrating the sheer amount of marketing and advertising they had poured into creating a link between the word and the Ohio State brand.

Does this mean that Ohio State now owns the word “the”? No. Every so often, the USPTO will grant a trademark for a common word or phrase, sparking confusion and concern from national media outlets. Previous examples include Meta’s trademark of the word “Face,” Paris Hilton’s trademark for the phrase “That’s hot,” and various trademarks for certain colors, such as Reese’s Orange, UPS Brown, and Post-it Yellow. In all these cases, the confusion seems to stem from a fundamental confusion about the difference between copyrights and trademarks. While the concepts are often mistakenly used interchangeably or otherwise conflated, they protect fundamentally different things.

Copyrights are reserved for original, creative works of authorship and grant the holder a limited-monopoly on the use of the protected work. To be creative, a work must have a spark and modicum of creativity. Names, titles, and short phrases are not creative enough to be receive protection, much less a single word.

Trademarks, rather than protecting creative works, protect brands and consumers against unfair competition. They prevent consumer confusion about the source of the goods and services they buy. Therefore, in order to acquire a trademark, the applicant must demonstrate that consumers associate the mark with the product or service in question. This association is called called “secondary meaning.” Ohio State was able to secure the “The” trademark because they proved to the USPTO that consumers associated the word with products from the college. Additionally, trademarks are typically restricted to certain classes of goods or services. Ohio State’s “The” trademark is limited to goods “promoted, distributed and sold through channels customary to the field of sports and collegiate athletics.” (This is, of course, an oversimplification of a complex area of law, and many nuances apply. For example, famous marks receive additional protection against dilution, preventing the tarnishment or blurring of the trademark.)

Because the crux of trademark law is to prevent consumer confusion, other universities can continue to use the word “The” as a part of their merchandising so long as the use of the word does not confuse consumers about where the merchandise in question is coming from. There is little risk of a consumer viewing an article of clothing with the words “The University of North Carolina at Chapel Hill” and mistaking it for being produced by Ohio State.

However, problems remain on the horizon for Ohio State. To maintain its trademark, Ohio State needs to defend against infringing uses of the work in order to protect the secondary meaning they’ve worked to create. At the same time, overstepping their enforcement risks someone bringing a challenge to their trademark, and given the ubiquitous nature of the word “The,” it may be hard to defend the trademark if a conflict arises. This puts the school’s licensing department in a difficult balancing act. One strategy used by trademark owners seeking to avoid challenges has been to be permissive in granting licenses to those who wish to use the mark. Still, it will be interesting to see how Ohio State will attempt to police this trademark.

Why would Ohio State go through all this hassle for a trademark that will be difficult to enforce? While the college certainly has a financial interest in protecting the goods they produce from unfair competition, it’s likely the “The” trademark is less about merchandising disputes and more about the word’s place in Ohio State’s cultural identity. Sports teams and the dedicated fan bases that support them rally around mascots, slogans, and common shared experiences. Having the federal government officially recognize their claim to the word is likely worth more to Ohio State than a small slice of their merchandizing revenue.

From Boise State’s trademark for their blue football field to Tim Tebow trademarking “tebowing,” the sports world has seen its fair share of unusual trademarks. Indeed, companies and individuals across all industries have been increasingly creative about what things they claim identify their brands. Verizon trademarked the “flowery musk scent” present in their stores. Lucasfilm trademarked the sound of Darth Vader breathing (officially “the sound of rhythmic mechanical human breathing created by breathing through a scuba tank regulator.”) Do you have a favorite unusual sports trademark or trademark from another industry? Communications Chairs Andrew Adams and Landis Barber would love to hear from you.

January 9, 2023/by SportsandEntertainment