Ohio State can’t trademark the word “the,” patent office says

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Ohio State University has failed to trademark the word “the,” with the U.S. Patent and Trademark Office on Wednesday turning down its application to claim the three-letter definite article as its own.

The school’s effort stems from its wish to be formally called “The Ohio State University,” rather than the arguably humbler “Ohio State University.” The university has emblazoned t-shirts, hats and other merchandise with the longer phrase, and thus had sought the trademark to protect the longer name.

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The trademark office said the application didn’t prove “The” functions as a trademark, meaning that the word doesn’t distinguish its gear from any other.

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“Registration is refused because the applied-for mark as used on the specimen of record is merely a decorative or ornamental feature of applicant’s clothing and, thus, does not function as a trademark to indicate the source of applicant’s clothing and to identify and distinguish applicant’s clothing from others,” the trademark office said in its decision.

A spokesman for Ohio State University said it had received a “non-final office action from the U.S. Patent and Trademark Office, which is not unusual. We are reviewing our options and have six months to respond.”

The trademark office’s decision said OSU can “overcome this refusal” through a variety of measures, such as submitting different examples of how it is using the term.

“This application has issues”

Washington, D.C., trademark attorney Josh Gerben initially spotted the application, which OSU said it had submitted to protect assets of “significant value.”

“This application has issues,” Gerben said in a video posted on Twitter. “In order for a trademark to be registered for a brand of clothing, the trademark must be used in a trademark fashion. In other words, it has to be used on tagging or labeling for the products. In this case, just putting the word ‘the’ on the front of a hat or on the front of a shirt is not sufficient trademark use.”

The lawyer took to social media again on Wednesday to spread word that the application had been rejected. In his view, one reason for the denial is that Marc Jacobs, the apparel company, had already applied for its own trademark on “the,” as in THE BACKPACK MARK JACOBS, which was approved by the patent office in June but is still under review. Marc Jacobs would likely come out on top if there’s a trademark dispute given its earlier filing date, Gerben said.

OSU attempted to trademark OSU on clothing in 2017 but found itself at odds with Oklahoma State University. The schools ultimately agreed to allow both institutions to use the acronym, according to the Columbus Dispatch.

Started in 1870 as the Ohio Agricultural and Mechanical College, OSU changed its name to The Ohio State University in 1878.

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