Patent designation for use of “the” by The Ohio State University

The Ohio State University in Columbus was awarded a trademark June 21 for “the” when used by itself on clothing, including T-shirts, baseball caps and hats.

According to Twitter posts by trademark attorney Josh Gerben of Gerben Perrott PLLC, the decision by the U.S. Patent and Trademark Office comes after a three-year battle to secure the trademark that began when fashion designer Marc Jacobs sought to trademark the word in 2019.

Benjamin Johnson, Ohio State’s senior director for media relations, media and PR, lauded the decision and what it means for the school.

“Ohio State is pleased to have received a trademark for THE on branded products associated with and sold through athletics and collegiate channels,” he told the Columbus Jewish News in an emailed statement. “THE has been a rallying cry in the Ohio State community for many years, and Buckeye fans who purchase official Ohio State gear, support student scholarships, libraries and other university initiatives. Like other institutions, Ohio State works to protect the university’s brand and trademarks because these assets benefit students and faculty, and support our core academic mission of teaching and research. Ohio State’s trademark and licensing program generates an average of over $12.5 million annually in revenue for the university, which funds student scholarships and university programs.”

According to Gerben’s posts, the government first refused OSU’s trademark application arguing the use of “the” was “merely ornamental” and Jacobs had already sought a trademark. OSU replied by showing it was not using the trademark in such a matter and by challenging Jacobs’ application. Both the university and Jacobs reached a settlement in August 2021 that they both would have a patent registration for “the.”

Johnson said the agreement with Jacobs had to do with the different types of items being sold by each party.

“Marc Jacobs’ THE branded products are associated with high-end/contemporary fashion,” he said. “Ohio State’s THE branded products are associated with and sold through athletics and collegiate channels.”

According to Gerben’s post, OSU’s application was granted after the school proved it was using the word “the” in a substantive and not “merely ornamental way.”

Johnson declined to discuss how the school proved its use of “the” was not ornamental as “we typically don’t discuss legal strategy.”