THE College Football Trademark to End All Trademarks… Or Not

THE College Football Trademark to End All Trademarks… Or Not

By Alexander JSW Johnson*

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 VOLUNTEERS^v?

“^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.

BLACKSHIRTS^xi on black shirts? It comes in black.

Not into apparel? How about shoes? And not just any horse’s shoe, THE SHOE^xii [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 WAR^xiii 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 U^xv 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 HEDGES^xxiv 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.