A Three-Letter Word, a 78-Page Application, and a Nation's Collective Double-Take
Somewhere in a federal trademark office in Virginia, a government examiner once looked at an application, reviewed the evidence, considered the legal precedent, and decided — yes, actually, this seems fine. The word in question was The. The applicant was Ohio State University. The year was 2019, and the internet was about to have an absolute field day.
Photo: Ohio State University, via content.presspage.com
But here's the thing that gets glossed over in every joke about this story: the application wasn't crazy. It was, in its own deeply strange way, legally coherent. And that's what makes it genuinely fascinating rather than just funny.
How You Trademark Something That Belongs to Everyone
To understand how Ohio State pulled this off — even temporarily — you need to understand what trademark law actually protects. Trademarks aren't about owning words in the abstract. They're about protecting source identifiers: specific uses of a word, symbol, or phrase in commerce that signal to consumers where a product comes from.
Under that framework, you can't trademark the word apple to describe fruit. But Apple Inc. can trademark it to sell computers, because in that context it's not describing the product — it's identifying the brand. The more distinctive the mark, the stronger the protection.
Ohio State's argument followed the same logic. They weren't trying to own the word The in every sentence ever written. They were claiming it as a brand identifier — specifically, the stylized word THE as it appears on licensed merchandise, athletic apparel, and university gear. They even submitted evidence that the university had been using this particular branding since at least 2005, and that fans and consumers associated the bold, standalone THE with Ohio State specifically.
The United States Patent and Trademark Office looked at that argument and, in August 2019, issued a Notice of Publication — the step just before full registration — signaling that the application had cleared initial review.
Photo: United States Patent and Trademark Office, via upload.wikimedia.org
Cue the Chaos
The story leaked, and the reaction was immediate and merciless. Headlines appeared within hours. Late-night hosts ran with it. Twitter produced approximately four thousand jokes about Ohio State trying to charge licensing fees every time someone started a sentence. The New York Times covered it. The Washington Post covered it. Both publications were presumably aware of the irony.
Photo: The New York Times, via i.pinimg.com
What made the story stick wasn't just the absurdity — it was the unsettling realization that the application had gotten that far. The USPTO hadn't laughed it out of the room. It had proceeded through review, been examined by a trained attorney, and been found, at least preliminarily, to meet the standards for trademark registration.
Legal scholars started paying attention for a different reason entirely.
The Loophole That Wasn't Really a Loophole
The trademark system has long struggled with what attorneys call "merely descriptive" marks — words so common or generic that granting one company exclusive rights would harm everyone else. Courts have generally been protective of the language commons. You can't trademark cold for beer or fast for cars.
But Ohio State wasn't claiming The described anything about their products. They were claiming it as an arbitrary mark — the same category that lets Apple own Apple for electronics. And arbitrary marks, by definition, get stronger protection, not weaker.
The catch, which legal observers were quick to point out, is that the USPTO has a separate doctrine covering words that are so fundamental to the language that even arbitrary use can't justify private ownership. The problem? That doctrine is unevenly applied and poorly defined. There's no official list. No bright line. Just a case-by-case judgment call.
Ohio State's application exposed exactly how blurry that line is.
The Rivalry Arrives in Litigation Form
The story took one more perfect turn when Nike — yes, that Nike — filed an opposition to Ohio State's trademark application in 2021. Nike holds trademark rights to THE in certain clothing categories, having registered it years earlier. Two massive American institutions, fighting over a definite article. In court. With lawyers.
After negotiations that the public was not invited to observe, Ohio State and Nike reportedly reached an agreement allowing both parties to coexist in their respective trademark lanes. Ohio State eventually received full registration for THE in certain merchandise categories in 2022.
So technically, for specific classes of licensed apparel and goods, Ohio State University does own a trademark on The. Legally. Formally. With a registration certificate and everything.
Why This Is More Than a Punchline
The Ohio State THE story gets treated as a quirky news item, a one-day laugh before the cycle moves on. But legal historians and intellectual property scholars have flagged it as something more substantive: a genuine stress test of where trademark law draws the line between brand identity and linguistic commons.
If an institution can trademark a standalone THE when it's sufficiently associated with their brand in the minds of consumers, what else becomes available? What other fragments of shared language are sitting out there, waiting for the right evidence package and the right filing?
Ohio State didn't break the law. They found exactly where the law gets fuzzy — and walked right up to the edge. The USPTO's initial approval wasn't a mistake. It was the system working as designed, which is either reassuring or terrifying depending on how you feel about definite articles.
Somewhere out there, a trademark attorney is already thinking about A.
