Insights:Who Owns “THE”?

You’d be forgiven to think a word so commonplace as “the” couldn’t be trademarked. You’d also be wrong. Ohio State University has just become victorious in a long running legal battle with designer Marc Jacobs, or more appropriately – The Marc Jacobs of The Tote Bag fame.

For years Ohio State University has referred to the school as The Ohio State University (emphasis on “THE”)  to separate themselves from other schools within the state. They sell over 10 million dollars annually in fan wear and other booster items that simply feature the word “THE”. They won their trademark not by being the first entity to try to trademark the word, but by showing they used it long before others, including retailer Marc Jacobs.

It may come as a surprise that any common word can be trademarked, if the entity attempting to trademark it can show that their usage has a distinctive secondary meaning that is different from the original meaning, then it can get U.S. Patent and Trademark Office approval. Thus THE.™

Fortunately, we all won’t need to stop using the word “the” or risk running afoul of predatory trademark lawyers. Ohio State University’s trademark only covers usage on branded products like t-shirts and hats. In fact, THE university even came to an agreement with Marc Jacobs that allows both parties to use “THE”.  

Acquiring a trademark can be a confusing undertaking, which is ironic, because one of the main purposes of the trademarking system is to limit confusion in consumers’ minds. 

To learn more about what should, and shouldn’t, be trademarked, give Insight’s team a call at 605-275-0011 or send us an email.  While our team works with and creates marketing assets that are often trademarked – we always strongly recommend consulting an experienced trademark attorney to research and secure your trademarks.