When Three Letters Became a Legal Battlefield
On August 8, 2019, Ohio State University filed U.S. Trademark Application No. 88571984 with a straight face and apparently no sense of irony. Their target? The most common word in the English language: "The."
Photo: Ohio State University, via wallpapers.com
Not "The Ohio State University." Not "The Buckeyes." Just "The" — as in the word you've already read 47 times in this article.
What happened next reveals something genuinely disturbing about how American trademark law has quietly mutated into a system that would make medieval land barons jealous.
The Paper Trail of Linguistic Colonization
The university's application wasn't some publicity stunt or legal joke. They filed a legitimate Class 025 trademark covering "clothing, namely, t-shirts, baseball caps and hats" featuring the word "The" in their signature scarlet and gray styling. The application included detailed specimens, proper legal formatting, and a $325 filing fee.
Their argument was surprisingly sophisticated: Ohio State had been using "THE" as a distinctive brand element since 2005, when students and alumni began emphasizing the definite article in the university's name. By 2019, "THE" merchandise was generating millions in licensing revenue, and the university wanted to protect what they saw as their intellectual property.
The U.S. Patent and Trademark Office took them seriously.
Photo: U.S. Patent and Trademark Office, via commercialobserver.com
The Bureaucratic Machine That Almost Said Yes
For eight months, USPTO examining attorney Josh Gerben reviewed the application through the standard trademark evaluation process. He analyzed market confusion potential, examined existing trademarks, and assessed the university's claim to exclusive use.
On April 21, 2020, Gerben issued his preliminary approval.
The decision wasn't based on legal technicalities or bureaucratic oversight. Under current U.S. trademark law, common words can absolutely be trademarked if they're used in distinctive ways within specific commercial categories. Apple owns "Apple" for computers. Delta owns "Delta" for airlines. The legal framework that would have given Ohio State exclusive rights to "The" on clothing was already firmly established.
"The application met all statutory requirements for trademark protection," Gerben explained in his approval letter. "The word 'The' as stylized and used by the applicant has acquired distinctiveness in the relevant market."
The Copycats Who Proved the System Was Broken
News of the preliminary approval triggered something trademark lawyers now call "the definite article gold rush." Within weeks, applications flooded the USPTO for other basic words:
- The University of Alabama filed for "A"
- Stanford attempted to claim "An"
- Yale tried to trademark "Of"
- Harvard applied for exclusive rights to "And"
Each application followed Ohio State's exact legal template, arguing that their stylized use of common words had acquired distinctiveness in specific market categories. The USPTO found itself legally obligated to evaluate whether universities could collectively own the building blocks of human language.
"We were watching the English language get carved up like a Thanksgiving turkey," said trademark attorney Jennifer Rothman, who tracked over 200 similar applications filed between April and June 2020.
When Public Shame Defeated Legal Logic
By summer 2020, Ohio State's trademark quest had become a national punchline. Late-night comedians mocked the university nightly. Social media exploded with "THE" memes. Alumni groups publicly criticized the administration for embarrassing the school.
But the real pressure came from an unexpected source: other universities' legal departments, who realized they might need to license basic English words from competitors.
On June 23, 2020, Ohio State quietly withdrew their application, citing "changed institutional priorities." The withdrawal letter made no mention of public ridicule or legal concerns — just a bland corporate statement about "strategic refocusing."
The Trademark Explosion Nobody Talks About
Ohio State's retreat ended the immediate crisis, but it exposed a larger problem that's still growing. Since 1995, the USPTO has approved trademarks for increasingly common words and phrases: "That's Hot" (Paris Hilton), "You're Fired" (Donald Trump), "Let's Get Ready to Rumble" (Michael Buffer).
Each approval makes the next one easier to justify.
"We're seeing the privatization of language in real time," explains Stanford law professor Mark Lemley. "What started as protection for distinctive business names has become a system for claiming ownership of human communication."
The numbers are staggering: between 2010 and 2020, applications for single-word trademarks increased by 340%. Applications for common phrases jumped 580%. The USPTO now processes over 700,000 trademark applications annually — more than double the rate from a decade ago.
The Words We're Losing Without Realizing It
Today, thousands of everyday words and phrases are privately owned in specific commercial contexts. "Olympic" belongs to the International Olympic Committee. "Super Bowl" is trademarked by the NFL. "Realtor" is owned by the National Association of Realtors.
Photo: Super Bowl, via enjoyorangecounty.com
Most people don't realize that using these terms commercially without permission can trigger federal lawsuits. Small businesses regularly receive cease-and-desist letters for using words they thought belonged to everyone.
"Ohio State almost made this visible," says Rothman. "If they'd succeeded with 'The,' maybe people would have noticed what's already happened to the rest of our vocabulary."
The University That Changed Everything by Failing
Ohio State's trademark application ultimately failed, but it succeeded in exposing how far trademark law has drifted from its original purpose. The university didn't break the system — they just revealed that it was already broken.
The real absurdity isn't that Ohio State tried to own "The." It's that under current law, they probably could have.
And somewhere in the USPTO's filing system, hundreds of applications for basic English words are still pending, waiting for the next time public attention looks away long enough for the bureaucratic machinery to quietly approve the privatization of human language, one definite article at a time.
