“THE” Ohio State University’s Attempt to Trademark THE Most Popular Word in THE English Language
According to Dictionary.com, the most common word for all English speakers is “the.”[1] On average, English speakers use the word “the” every five out of one hundred words.[2]
Around the same time Ohio native Lebron James attempted and failed to trademark “Taco Tuesday,” The Ohio State University (“Ohio State”) filed an application with the United States Patent and Trademark Office (“USPTO”) to trademark “the” on August 8, 2019.[3] Ohio State intends on using the word “the” as a logo on hats and shirts, and the university sent designs to the USPTO.[4] Initially, the USPTO responded by denying Ohio State’s trademark application.[5] However, there still is a chance that the university can submit a successful application.[6]
Ohio State has six months to respond to the USPTO’s initial denial of their trademark application.[7] There are two main reasons why the application was not successful: (1) the high-end clothing brand Marc Jacobs has a pending application for “the” that came before Ohio State’s filing; and (2) the USPTO indicated that Ohio State was not using “the” properly to be a trademark.[8]
In May, the Marc Jacobs application was filed and is still under review.[9] The Marc Jacobs application has priority over the Ohio State application since their attempt to trademark “the” came before the university’s.[10] If Marc Jacobs gets the trademark, Ohio State would most likely have to challenge the registration in order to protect its own use of the word “the.”[11] However, trademark attorney Josh Gerben says that it is possible the Marc Jacobs application disappears because the USPTO indicated that the clothing company did not use the trademark properly.[12]
If the Marc Jacobs trademark application goes away, the door may be open for Ohio State to trademark the word “the.”[13] However, the university would still need to correct its application to fit trademarking requirements.[14] For a brand of clothing to be a trademark, Gerben explains that “the trademark must be used in trademark fashion.”[15] To meet this “trademark fashion,” the word would have to be used on tagging or labeling of products instead of merely putting “the” on a hat or shirt.[16] Right now, Ohio State looks to be using the word “the” in “an ornamental fashion across the front of a shirt and hat,” which will have to change if it expects to produce a successful trademark application.[17] While one may think a company or university could not trademark the word “the,” there seems to be a chance that Ohio State may prove to be successful in the future. [18]
Ohio State’s attempt to trademark a common word is continuing a recent trend of celebrities and organizations trademarking popular words.[19] Taylor Swift attracted a lot of attention in 2015 through her attempt to trademark her birth year “1989” for her music album.[20] Kim Kardashian West tried to register the word “kimono,” which is a traditional Japanese garment.[21] The mayor of Kyoto, Japan personally asked Kardashian to revise her branding, which she ultimately agreed to do.[22]
This is not even the first time that Ohio State has been creative with its trademarks.[23] In 1870, the university was established as the Ohio Agricultural and Mechanical College. Its name was updated to The Ohio State University in 1878.[24] Ohio State attempted to trademark “OSU.” However, the attempt presented a conflict with Oklahoma State University, and the two schools decided that both could use the OSU acronym.[25]. Past Ohio State coaches, like Urban Meyer and Woody Hayes, had their names trademarked.[26] The world will just have to wait and see if the most commonly used English word will be successfully trademarked by The Ohio State University or by The Marc Jacobs company—or by nobody at all, at least for the time being.
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