This Note examines the growing concern in the legal community around trademark bullying by specifically focusing on the registration of the word mark “THE” by The Ohio State University (“OSU”) and its potential for abuse and overreach in trademark enforcement. By carefully analyzing relevant legal precedent, statutory provisions, and USPTO administrative procedures, this Note critically considers the offered justifications for and likely consequences of the trademark’s registration.
By exploring the historical progression of trademark law, including its purpose and underlying principles, this Note provides a framework for evaluating the merits and potential concerns associated with the recent registration. Additionally, it delves into the concept of trademark bullying, how and why it is perpetrated, and its implications. It argues that OSU, as a large resource-rich institution, likely possesses the means and desire to pressure smaller producers who use the term “THE” in their branding, products, or services to cease use, even when the likelihood of confusion or harm to the trademark owner, OSU, is minimal.
“THE”’s registration highlights the need for ongoing dialogue and reform to protect mark owners’ legitimate rights and safeguard the public’s interest in maintaining a competitive idea marketplace. Further, the Note offers potential statutory and interpretive reform to disincentivize bullying behavior.
Jennifer M. Danker,
To "THE" or not to "THE"? The Question has been Answered: An Examination of Trademark Bullying in the context of the Ohio State University's Recent Trademark Registration,
J. Intell. Prop. L.
Available at: https://digitalcommons.law.uga.edu/jipl/vol30/iss2/4