In an interesting and bold move, Ohio State University Corporate lawyer for high-net-worth clients Newport Beach(OSU) recently attempted to file the word “THE” as a federal trademark, sparking a conversation around intellectual property, trademark law, and the intersection of academia and commercial branding. While the attempt has not been fully resolved yet, it’s generated significant buzz in the legal world and beyond.
Here, we break down why OSU is making this unusual move, what it could mean for trademark law, and the implications for other institutions and businesses considering similar strategies.
Why "THE"?
At first glance, it may seem like an odd word to file for a trademark. After all, “the” is one of the most common words in the English language. However, Ohio State University has a unique connection to the word. The university’s sports teams, particularly the Ohio State Buckeyes, are known for their strong branding, which often incorporates “THE” before “Ohio State” as part of their signature phrase, “THE Ohio State University.” This phrase has become a core part of OSU’s identity, especially in the context of collegiate sports and fan culture.
The branding effort is not just about adding flair to their name. The university’s athletic teams and alumni strongly associate “THE Ohio State University” with a sense of pride, excellence, and distinction. By trademarking "THE," OSU seeks to protect and control this part of their branding identity, ensuring that no one else can use the phrase in a way that could cause confusion or dilute its significance.
The Legal Side of Trademarking "THE"
For any term to be granted a federal trademark, it must meet specific legal criteria. Trademarks are typically granted for words, symbols, or phrases that distinguish goods or services from others in the marketplace. Words like “THE” are typically considered “generic” and cannot be trademarked because they are too common or necessary for everyday language.
However, OSU argues that “THE” is used so specifically and uniquely in connection with their brand that it has become a distinct identifier of the university’s image and sports legacy. This brings up the question of whether common words, when used in highly specific ways, can be protected under trademark law. Can the word “THE” become a unique identifier of an institution’s brand, or does it remain too generic?
Potential Challenges
OSU’s attempt to trademark “THE” has not gone unchallenged. Critics argue that allowing such a commonly used word to be trademarked could open the door to a wide range of unintended consequences. For instance, if “THE” is granted exclusive use by OSU, could other institutions begin to claim exclusive rights over other common words, such as “UNIVERSITY” or “STATE”? Would this limit freedom of expression or create confusion about the use of everyday language?
Additionally, the U.S. Patent and Trademark Office (USPTO) is likely to scrutinize whether OSU’s use of “THE” truly meets the criteria for trademark protection. A word that is as common as “THE” may be seen as too generic to be granted exclusive use in a trademark.
The Bigger Picture: Branding in Higher Education
OSU’s move to trademark “THE” reflects a larger trend in higher education and sports where universities and athletic programs are increasingly focusing on brand protection and the commercial potential of their intellectual property. Schools like OSU have large fan bases and significant revenue from merchandising, and this strategy underscores the growing importance of maintaining control over university branding in a competitive marketplace.
Trademarking is not limited to universities, of course. Companies regularly file for trademarks on commonly used words or phrases that have become integral to their identity. The question remains, however, whether a public institution like OSU should be granted that same level of control over language, especially when that language is shared by millions of people worldwide.
The Outcome and Broader Implications
As of now, OSU’s attempt to file "THE" as a federal trademark is still being reviewed by the USPTO. If granted, this move could have a significant impact on trademark law and university branding, especially for schools with strong sports programs or unique regional identities. It may even lead to a reevaluation of how trademark law applies to common words in the context of unique, culturally significant uses.
For businesses and institutions that are thinking about their intellectual property strategies, OSU’s bold move could serve as a case study in the complexities of branding. The outcome of this case will likely set a precedent for how intellectual property law is applied to the use of common language in branding.
Final Thoughts
Ohio State University’s attempt to trademark the word “THE” has captured the attention of legal experts and the public alike. Whether this trademark filing is ultimately successful or not, it underscores the evolving nature of branding and intellectual property in the modern era. As universities and businesses alike continue to realize the value of their brands, the legal landscape around trademarks will undoubtedly continue to evolve, with broader implications for how words and phrases are used in commerce.
Stay tuned for updates as OSU’s trademark application is processed, and as the conversation around trademarking common words in branding continues to unfold.
About Bernstein Law
At Bernstein Law, we are committed to helping clients navigate complex trademark and intellectual property issues. Whether you’re an institution looking to protect a unique brand identity or a business seeking guidance on securing intellectual property rights, we offer expert legal advice to help safeguard your most valuable assets. Reach out to our team for more information on trademark law and how we can assist you.