Why Marc Jacobs and Ohio State Both Fight to Trademark the Word ‘The’

One of the most common words in the English language. But two different entities want consumers to associate them with the word.

Fashion designer Marc Jacobs and Ohio State University separately filed applications in 2019 with the U.S. Patent and Trademark Office for the “the” trademark, which would allow them to embellish it on merchandise such as T-shirts and bags — and any and will prevent it from doing so. This week, the USPTO granted the university a trademark, and although attempting to trademark such a generic term may sound ridiculous, experts say it’s actually a clever bit of branding.

In some ways, the whole concept of sticking “the” on shirts started out as a joke. Back in 1986, The Ohio State University wanted to move away from the acronym OSU because it is also used by Oregon State University and Oklahoma State University, causing a lot of confusion. So the school tried to rebrand itself Ohio State University, in a word, encourages others to do the same.

By the mid-90s, athletes and alumni were using the article When referring to the state of Ohio; NFL players used the term in television broadcasts; And saturday night live Parodyed it. Over the years, in the last iteration of the joke, people have used “the” to refer to the school, including on T-shirts.

[Images: USPTO]

Meanwhile, something similar was going on in the fashion world as well. Apparel company Marc Jacobs started using the term. on various products includingtote bag” And “Bag“It was also designed to be a humorous form of branding, associating a certain article with a generic product. Over time, some Marc Jacobs photo shoots had models wearing sweaters.”” On them.

“It’s about two brands experimenting with language to differentiate themselves,” says Alexandra J. Roberts, a professor at the New Hampshire School of Law who specializes in trademark law. “These approaches are tongue in cheek, irreverent and humorous. They are thinking something out-of-the-box, trying to broaden the set of things that people associate with a brand.”

In 2019, Ohio State University and Marc Jacobs each wanted to codify their relationship with the word. Marc Jacobs filed an application for the trademark “the” with the USPTO, and Ohio State University did the same shortly thereafter. This week, the university was granted a trademark. But Roberts points out that the USPTO is particularly concerned with preventing consumer confusion, so it specifies that the university should use the term in a way that consumers understand that it is an official part of branding. In this case, it might mean putting “the” on a shirt label or price tag to illustrate that it’s not just a cute saying. “The whole point of a trademark is for people to look at the symbol or word and associate it with a source or brand,” she says.

Although obtaining this trademark is a major victory for the state of Ohio, ESPN Points out that it may not be the only university that will be able to use “the” on apparel. For the first five years after a trademark is registered, other parties can petition to have it canceled on the grounds that it does not yet function as a trademark.

And Marc Jacobs, for his part, can still obtain a trademark for the word, Roberts says, because the application is still pending. Over the past three years, the company and the university have chosen not to battle over the word, but to work with each other and the USPTO to use it. The key for them is to use the trademark in different ways so that consumers don’t confuse the Ohio State University product with a Marc Jacobs product.

“Two trademarks can coexist,” Roberts says, explaining that there are several brands of the same name, such as Yale University and Yale Locks. “But it would be much easier to imagine their coexistence if Marc Jacobs had a trademark for handbags, and the university had a trademark for shirts and hats.”

Roberts says that trademarking “the” is an example of clever branding that also creates new associations in the minds of consumers. “By trademarking ‘the’, they’re creating a spin-off brand,” she says. “That means there are more ways consumers can engage with the brand. By formalizing their patronage of the word, there’s nothing anyone else can do.”

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