Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 22, Issue 18
Share on Social
THE College Football Trademark to End All Trademarks… Or Not
College football’s week zero [yes, zero] has come and gone without any wild trademark registrations from the sport.
For trademark friendly-college football fans, the biggest news of the season came from Columbus, Ohio. The Ohio State University kicked off the summer by famously—notoriously—registering a trademark for the word THE.i Since then, the internet has been up in arms about it. The pushback has been so strong I think I’ve heard strange shouts of phrases like “WAR EAGLE!ii,” “TIGER BAIT!iii,” and “we need a round of BOILERMAKERS!iv” [Please, don’t drop a shot of whiskey in your beer. The whole is less than the sum of its parts, and that’s not what Purdue’s name means anyway.]
The question I would like you to answer is, can you really “trademark” THE?
Any VOLUNTEERSv?
“vi 
can’t do that!” you may say.
“vii 
!” says 
.viii
You can register THE just as well as 
.ix Why, you can even register an OLD OAKEN BUCKET x if you want to.
BLACKSHIRTSxi on black shirts? It comes in black.
Not into apparel? How about shoes? And not just any horse’s shoe, THE SHOExii [I don’t think it’s an oxford or sneaker, it’s shaped more like a clog or whatever the generic term is for CROCS®].
College sports brands, like all brands, can be protected as trademarks if: i) they’re used properly to identify the source of goods or services, ii) not a generic or merely descriptive term for the goods and services they’re used for, and iii) not confusingly similar to others’ trademarks (among other technical criteria).
“Common words can’t be trademarks” is a common misconception. For example: every single-letter logo, and all-caps term in this article is a registered trademark of a college or university in support of their athletics program. Not only can THE be “trademarked,” but so can college football’s A-B-Cs and other names and phrases.
So, let’s not start a CIVIL WARxiii over a trademark registration by one school, acting like it’ll bring on the FOUR HORSEMEN xiv of the trademark apocalypse.
Whether you love LINEBACKER Uxv or just the , I have a suggestion for all of us: let’s stop bemoaning THE trademarks earned and open our eyes to the brands we have been enjoying all along.
In the college football landscape, we have great trademarks (oh, all the letters!).
We’ve got the RED RIVER SHOWDOWN,xvi the KEYSTONE CLASSIC xvii and LONESTAR SHOWDOWN.xviii There’s a HEROES GAME xix each fall and an IRON BOWL xx to top it all.
College football even gives us mysteries, like HOOSIERS.xxi What are they and why can’t Hoosiers explain?
And while football tailgates are known for beer, you can also grab an APPLE CUP,xxii and add some ORANGE.xxiii
If you’ve lost your way, college football brands can tell you where it’ll be, BETWEEN THE HEDGESxxiv or at THE SWAMP.xxv And as always, the sport is played 11-on-11, unless you’re Texas A&M who for some reason gets a 12TH MAN.xxvi
And if you really aren’t all that into college football, maybe pay a visit to TRACK TOWN USA,xxvii instead, 
?xxviii
Trademarks are fun. College football is fun. In my opinion—and this may upset two particular fan bases—we can just sing HAIL TO THE VICTORS xxix to revel in celebration over THE managing to register at all.
*Alexander JSW Johnson is an associate attorney at Fishman Stewart with nearly nine years of experience in trademark and intellectual property matters. He works in the firm’s trademark practice group. He holds a B.A. in Art (studio emphasis) and Journalism. Check out his full bio here.
i Ohio State Buckeyes audibly emphasize THE in pronunciation.
ii Auburn’s battle cry.
iii A chant of LSU fans.
ivPurdue nickname from a 1891 accusation of recruiting athletes from boiler shops.
vTennessee nickname based on the state’s nickname earned for volunteering soldiers.
viY – Brigham Young; O – Oklahoma State; U – Miami (FL) aka “The U”
viiW – Wisconsin; R – Rutgers; O – Ohio State; N – Nebraska; G – Georgia
viiiI – Illinois
ixA – Alabama
xName of Indiana-Purdue trophy, named for, literally, an old oaken bucket.
xiA title earned by Nebraska’s first-team defensive players.
xiiOhio Stadium is nicknamed “The Horseshoe” or “The Shoe”, due to its shape.
xiiiFormer official nickname of Oregon-Oregon State series.
xivNickname of a famed quartet of Fighting Irish players, a biblically inspired moniker.
xvNickname for Penn State due to the prowess of their players at the position.
xviNickname of the Texas-Oklahoma series, named for the river-border between the two states.
xviiNickname of the Penn State-Pitt series, a reference to Pennsylvania’s nickname the “Keystone State.”
xviiiNickname of the Texas-Texas A&M series, a reference to Texas’s nickname the “Lone Star State.”
xixNickname of the Iowa-Nebraska series, a reference to community heroes from each state honored at each game.
xxNickname of the Alabama-Auburn series, a reference to steel industry in the state.
xxiIndiana’s nickname, both team and state, with unclear origins.
xxiiNickname of the Washington-Washington State series, a reference to the state’s production of apples.
xxiiiSyracuse athletics nickname, a reference to their primary color.
xxivA reference to Georgia’s botanical edging around the football field.
xxvFlorida’s stadium nickname, “a place where only Gators get out alive.”
xxviTexas A&M’s student body nickname, a reference to one student who came down from the stands and suited up when A&M’s depth had been depleted in a 1922 game.
xxviiNickname for Eugene, OR, based on the prowess of University of Oregon’s track program.
xxviiiO – Oregon; K – Kentucky
xxixProminent line from Michigan’s fight song, “The Victors.”
Published September 2, 2022
Fishman Stewart Attorneys Recognized as 2022 Michigan Super Lawyers and Rising Stars
Super Lawyers released its annual index of attorneys who exhibit excellence in the practice of law, and intellectual property law firm Fishman Stewart, PLLC, is pleased to announce that a total of nine firm attorneys have been named to the 2022 Michigan Super Lawyers and Rising Stars lists. Super Lawyers uses a patented multiphase selection process with peer nominations, evaluations and independent research to determine who is awarded the Super Lawyers designation. Read the full article here.
Related Content from Fishman Stewart
People like tacos on Tuesdays. They just do. It’s even fun to say: “Taco Tuesday.” But since 1995, Registrant has owned a federal trademark registration for “Taco Tuesday.” Not cool.
The US Copyright Office recently made headlines for partially revoking a copyright registration it previously issued for an AI-generated graphic novel. Artist Kristina Kashtanova used the Midjourney platform to create images that she included in her graphic novel called Zarya of the Dawn.
Ed Sheeran recently successfully defended against a copyright infringement lawsuit over his 2014 hit “Thinking Out Loud.” Songwriter Ed Townsend’s heirs brought the suit alleging Sheeran had infringed Townsend’s copyrights in the 1973 Motown classic, “Let’s Get It On” which Townsend co-authored with Marvin Gaye.
American publishing houses consistently snapped up the works of the famous British author, re-published them in cheap editions, which sold all over the country, and they pocketed the proceeds without any remuneration to Charles Dickens.
For many of us, the term “Easter egg” conjures up memories of dying hard-boiled eggs in bright colors or hunting for treasures and candies stuffed inside plastic orbs hidden around the neighborhood.
When a Bad Spaniel leaves a doggy stain on a famous brand’s proverbial carpet, even the Supreme Court can have fun.
Each of us is creative. The key is to leverage that creativity, converting it into an intellectual property asset that enhances enterprise value.
People are familiar with the most famous examples of trademarks which have been “lost”—or almost lost.
If you are looking to capitalize on the NCAA tournament, make sure to draw up your promotional play with a trademark attorney beforehand.
This practice is often called the “Poor Man’s Copyright” and the idea has been around for a long time. The theory is that mailing a copy of a work to yourself will provide you with certain legal rights akin to a copyright registration so long as the envelope remains sealed and bears a postmark by the United States Postal Service.
IDENTIFYING, SECURING AND ADVANCING CREATIVITY®
