August 21, 2019
Ohio State University (“Ohio State”) is trying to trademark the most commonly used word in the English language: “THE”. The school, often referred to as ‘The’ Ohio State University, is seeking protection of the word for use on t-shirts, baseball caps and hats.
Ohio State originally adopted “THE” as part of its name in an attempt to “reflect the national stature of the institution” and to prevent confusion with Oklahoma State University and Oregon State University, which both use the acronym “OSU”.
However, Ohio State may have a hard time getting its application approved. For a trademark to be approved in the U.S., it must be deemed distinctive. The U.S. Supreme Court in Two Pesos, Inc v. Taco Cabana, Inc. clarified the general requirements for distinctiveness. An identifying mark must: (1) be inherently distinctive; or (2) have acquired distinctiveness through secondary meaning. Ohio State will have to show that its use of “THE” on apparel is distinct enough so as to exclude others from using it.
Rival University of Michigan was quick to strike back by mockingly saying it would be applying to trademark the word “OF”.
Authors: Larissa Fulop and Zach Hershenfeld