The trademark THE has just been registered by the United States Patent and Trademark Office (“USPTO”) to The Ohio State University (“OSU”) for t-shirts, ballcaps, and hats. Yikes! What does this mean for others wanting to use the word “The”?
The trademark registration gives OSU the exclusive right to use the word “The” by itself as a brand name for the clothing listed in the trademark registration – t-shirts, ballcaps, and hats. It does not give OSU the exclusive right to use the word “The”. Neither does it give OSU the right to keep other universities from using the word “The” in connection with their name. Many universities use the word “The” as part of their name. For example, and just to name a couple, the University of Oklahoma has registered trademarks for “The University of Oklahoma” and the University of Arizona has registered trademarks for “The University of Arizona”. The trademark registration for THE by OSU, however, does give OSU the right to prevent other universities (and all other third parties) from using the word “The” by itself as a brand name for certain clothing and other goods.
An interesting fact about the trademark application process for THE is that the USPTO initially rejected the trademark application on the grounds that OSU was not using the word “The” as a trademark but only in an ornamental or decorative fashion. This rejection was based on the fact that OSU was using “THE” in large letters on the front of a t-shirt and a hat, but not on a tag or label which would indicate that it was a brand name. OSU eventually overcame this rejection by submitting new evidence showing a t-shirt that had THE printed on the back inside of the shirt at the top where labels for clothing usually are located.
The main takeaway from this trademark registration is to emphasize again the USPTO’s ongoing position that words, slogans, and designs on the front of t-shirts, other clothing, and merchandise often do not constitute trademark use.