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  #51  
Old 08-15-2019, 01:08 PM
Acsenray is offline
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Right, but is that the use of "The" as an indicator of source for the T-shirts? Does this use and significant uses like it make it impossible for "The" to function as an indicator of source for T-shirts?

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If I saw a shirt with just the word "THE" on it, I'd probably think of the band, first. Does that count as brand confusion? Admittedly, I'm unlikely to attempt to get an undergrad degree from a The The concert, or expect a live music show if I'm sitting in a econ 101 class room in Idaho.
You'll never get a definitive answer to that question just talking about it on the internet. Ultimately, trademark rights are about positioning yourself for a fight. And there are several stages at which a fight can happen.

O.S.U. has an application before the P.T.O. Well, someone can challenge that application in an opposition proceeding. But that someone has to have standing, that is, it has to be someone who either already claims rights in a confusingly similar trademark or stands to face a legal threat from O.S.U. over "The."

Well, say O.S.U. wins the opposition proceeding and the P.T.O. issues a registration. Well, that's not the end of it. Someone can bring a cancellation proceeding and argue that the P.T.O. made a mistake and should cancel it. Say O.S.U. wins a cancellation proceeding. That's not the end of it.

Someone can go to a federal court and say, "Hey, the P.T.O. got it wrong!" and ask the court to direct the P.T.O. to cancel the registration.

Or, the registration itself need not be directly challenged. If O.S.U. threatens someone over "The," E can go to a court and say, "O.S.U.'s trademark claim is bogus." Or, E can wait for O.S.U. to sue, and then argue as a defense "O.S.U.'s trademark claim is bogus."

It's only after a court rules on the merits that we really know what O.S.U.'s real trademark rights are. But if no one in competition with O.S.U. is willing to spend the time and money fighting over it, that day won't come.

And the longer O.S.U. goes without a legal challenge, the likelier it is that any eventual challenge will be unsuccessful. For one thing, if O.S.U. gets a registration, after five years, O.S.U. becomes immune to certain (but not all) arguments.


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Originally Posted by Icarus View Post
Hmmmp, I this doesn't cause any issues with how we describe our expressways in Southern California.

THE 101
THE 405
THE 210
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Originally Posted by Acsenray View Post
Are you asking for a serious answer or are you just joshing?
Okay, just in case you aren't joshing and really are wondering --

Trademark law regulates the use in commerce of trademarks. When you walk around in your own life saying "the 210," you're not using a trademark in commerce in a way that creates a likelihood of confusion with someone else's trademark.

This is a critical concept and one that causes a lot of people to get unnecessarily outraged over trademarks.

Trademark law is not a regulation of speech in general. For example, the Lego company would love it if you said "Lego-brand toy blocks" all the time and only in reference to their legitimately branded blocks and avoided calling them "Legos," and especially avoided calling someone else's blocks "legos" in a generic sense.

But you can do it all day every day for the rest of your life. You can even write a book that does it. A newspaper can go around printing "Legos" and "legos" all it wants, and the Lego company will never get any relief for it.

That's because there's no use in commerce here. Nobody is selling goods or services using "Legos" or "legos" as a source indicator (i.e., brand name). They can send out letters and publish websites complaining about "trademark misuse," but you know what? Trademark misuse isn't a thing in the law. So tough shit. Ultimately, if the public decides that "legos" is more useful as a generic term rather than as a brand name, then the Lego company is screwed.

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Originally Posted by That Don Guy View Post
Of course, all of these pale in comparison to what the International Olympic Committee does to protect the trademark "Olympics," right down to demanding that Greek restaurants that use the work "Olympic" change their names. The one event not controlled by the IOC that gets away with it: the Special Olympics.
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Originally Posted by Miller View Post
They threatened to sue the makers of the card game Legend of the Five Rings, because they had a picture of five rings on the back of the cards.
The Olympic Committee's trademark are very special. You might think of them as "super trademarks." The reason is that they have their very own statute, the Ted Stevens Amateur Sports Act of 1998, 36 U.S.C. Sec. 220506, which gives them rights that ordinary trademark owners don't have.

And there are only a few exceptions--for example, businesses that have been using Olympics trademarks continuously since before 1950, businesses whose obviously are named after the Olympic mountain range, and businesses located west of the Cascade Mountains in Washington state.
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  #52  
Old 08-15-2019, 01:40 PM
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Originally Posted by Acsenray View Post
And there are only a few exceptions--for example, businesses that have been using Olympics trademarks continuously since before 1950, businesses whose obviously are named after the Olympic mountain range, and businesses located west of the Cascade Mountains in Washington state.
I went to Olympic High School and Olympic College. Of course, Iím from western Washington.

Also we have an Olympic Peninsula (which is a huge chunk of land, about 3,600 square miles), and our state capitol is Olympia. We seem to love that name.
  #53  
Old 08-15-2019, 02:24 PM
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In my field of work, I deal with of OSU graduates, because there aren't a lot of universities that offer the necessary certificates and qualifications. This means that I frequently hear people referring to "THE Ohio State University." Every single time they do it, I feel like punching them in the mouth.
  #54  
Old 08-15-2019, 02:53 PM
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Originally Posted by Ponch8 View Post
In my field of work, I deal with of OSU graduates, because there aren't a lot of universities that offer the necessary certificates and qualifications. This means that I frequently hear people referring to "THE Ohio State University." Every single time they do it, I feel like punching them in the mouth.
It would be a challenge to not pronounce the word that way in all of my further discussions with them.

"Next we will schedule a meeting with THE Division Manager in order to plan out THE process analysis. We should make sure to pull in THE development team, as well as change management. But first, let me show you where THE bathroom and break room are."
  #55  
Old 08-15-2019, 02:56 PM
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A thought occurs to me: One sometimes hears of an overzealous corporate lawyer sending a cease-and-desist letter to someone who's been using the same name or other trademark since before the lawyer's company even existed. Usually, the recipient of the letter points out their priority, and it ends there. But couldn't such cases lead to an open-and-shut countersuit? The recent company, after all, is arguing that the two are sufficiently similar to cause confusion, and in a sufficiently-similar context. But if the smaller trademark holder is actually the older one, that would then mean that the big, newer trademark holder is actually in infringement.
  #56  
Old 08-15-2019, 03:26 PM
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Originally Posted by Chronos View Post
A thought occurs to me: One sometimes hears of an overzealous corporate lawyer sending a cease-and-desist letter to someone who's been using the same name or other trademark since before the lawyer's company even existed. Usually, the recipient of the letter points out their priority, and it ends there. But couldn't such cases lead to an open-and-shut countersuit? The recent company, after all, is arguing that the two are sufficiently similar to cause confusion, and in a sufficiently-similar context. But if the smaller trademark holder is actually the older one, that would then mean that the big, newer trademark holder is actually in infringement.
This can happen. It often leads to a condition called "reverse confusion."

Of course "open-and-shut" is rare. How much smaller is the prior user? There are cases in which the prior user is so small that its trademark rights are limited to a small geographic region, and the later, larger user basically gets the rights in the rest of the country.
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  #57  
Old 08-15-2019, 05:06 PM
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Originally Posted by Ponch8 View Post
In my field of work, I deal with of OSU graduates, because there aren't a lot of universities that offer the necessary certificates and qualifications. This means that I frequently hear people referring to "THE Ohio State University." Every single time they do it, I feel like punching them in the mouth.
In THE mouth.
  #58  
Old 08-16-2019, 07:00 AM
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Joke currently making the rounds in these parts:

"Honey, how do I wash my sweatshirt?"

"What color is it and what does it say?"

"Scarlet and gray, and it says "THE Ohio State University""

"HOT WATER AND FIVE CUPS OF BLEACH!"
  #59  
Old 08-16-2019, 08:53 AM
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Originally Posted by Acsenray View Post

They kept doing it to the extent that it became distinctive, and the public grew to learn that if they saw a blue field, that it was a Boise State event. That's how any trademark comes into being."
Not really. A trademark right can come into existence by just being registered.
  #60  
Old 08-16-2019, 09:41 AM
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Originally Posted by Isamu View Post
Not really. A trademark right can come into existence by just being registered.
Not in U.S. law. A registration application is always supported by the claim that "we are actually using this in commerce as a trademark" or "we plan to do that very soon." If you fail to follow up with actual proof of use in commerce, you'll lose your registration.

In particular when it comes to something like color, you have to additionally support your claim of distinctiveness, because a color by itself is not inherently distinctive. You have to have evidence of "secondary meaning."
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Last edited by Acsenray; 08-16-2019 at 09:43 AM.
  #61  
Old 08-16-2019, 09:48 AM
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Regarding Boise States original blue colored turf registration, the trademark examiner initially rejected Boise State's application for "failure to function due to lack of distinctiveness." To get the initial rejection reversed, Boise State had to submit evidence to "support the contention that the color blue as applied to artificial turf has gained acquired distinctiveness and has come to identify Applicant Boise State University as the sole source of the entertainment services presented in connection with that turf. The Exhibits, inter alia, offer many examples of unsolicited, third-party references, news stories, anecdotes, and magazine articles confirming that the blue turf has become virtually synonymous with Boise State University's athletics programs."
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Old 08-16-2019, 09:51 AM
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Originally Posted by Ponch8 View Post
In my field of work, I deal with of OSU graduates, because there aren't a lot of universities that offer the necessary certificates and qualifications. This means that I frequently hear people referring to "THE Ohio State University." Every single time they do it, I feel like punching them in the mouth.
Or next chance you get, "Bob, this is Jerry. He went to AN Ohio State University."
  #63  
Old 08-16-2019, 09:59 AM
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That's not what they think:
...
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Now, we could sit around and argue whether or not having a blue football field was a thing fit to be trademarked. Personally, considering the specific color the school used, I could buy an argument that fans that see the field do indeed think of Boise State. I certainly do. But the school expanded the trademark in 2010 to fields not just blue, but fields that are "non-green." And that's crazy. Bradlee Frazer, an IP attorney working with the school, has stated that any non-green athletic field carries with it the risk of confusion pertaining to Boise State. He can say that all he wants, but such a stance likely wouldn't survive a challenge from another school.
I can't find any U.S. trademark registration under Boise State's name for fields that are "non-green." And now that I look more closely at what is quoted here, I see it's a claim by the article itself, which doesn't directly cite to any claim by Boise State that it has a right in all non-green fields. So far as I am concerned, unless I can find a primary source, this amounts to an unsupported claim by the author of the article.
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  #64  
Old 08-16-2019, 10:02 AM
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Or next chance you get, "Bob, this is Jerry. He went to AN Ohio State University."
Well, change the capitalization, and there are several universities that might be correctly described as "an Ohio state university"--Cleveland State U., U. of Akron, Youngstown State U., Kent State U., U. of Toledo, Bowling Green State U., Wright State U., Central State U., Miami U., U. of Cincinnati, Shawnee State U., Ohio U., as well as Ohio State.
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  #65  
Old 08-16-2019, 11:16 AM
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Originally Posted by Pixel_Dent View Post
Or next chance you get, "Bob, this is Jerry. He went to AN Ohio State University."
Thanks--I might start doing that!
  #66  
Old 08-16-2019, 02:50 PM
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In my field of work, I deal with...OSU graduates, because there aren't a lot of universities that offer the necessary certificates and qualifications.
What field would that be? Communications or sports management?*

*snark aside, the top major for OSU football players is listed on this website as "sport industry". A distant second in embarrassment is Wisconsin, where the top football player major is "Community/nonprofit leadership and life science communication" (tie).
  #67  
Old 09-12-2019, 08:09 AM
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As I suspected OSU ran into trouble because their specimens showed ornamental use instead of trademark use.

https://www.dispatch.com/news/201909...emplate=ampart
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  #68  
Old 09-12-2019, 08:26 AM
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How and when is The supposed to be used?

The name of the band Paul McCartney and John Lennon were members of was called The Beatles. Not "Beatles." But The Beatles.

So when a person says, "I am a fan of The Beatles," they are grammatically (linguistically?) correct.

When a person says, "Play a song by The Beatles," they are grammatically correct.

But if someone were to say, "Play a The Beatles song," it sounds funny. Most people would say, "Play a Beatles song." Are they wrong for doing so?
  #69  
Old 09-12-2019, 08:39 AM
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I have virtually no interest in American colleges and how they choose to refer to themselves, but I'd just like to take this opportunity to sincerely thank Ascenray for patiently and clearly explaining how trademark and copyright law work, both here and in many other threads, despite the continual misunderstandings - I feel I've learnt a lot. Also, as an aside, I like your gender neutral pronouns (though personally I'm happy with using "they, them" etc., but let's not hijack this thread with that discussion).
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Old 09-12-2019, 08:53 AM
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Originally Posted by Jackmannii View Post
What field would that be? Communications or sports management?*

*snark aside, the top major for OSU football players is listed on this website as "sport industry". A distant second in embarrassment is Wisconsin, where the top football player major is "Community/nonprofit leadership and life science communication" (tie).
I knew a guy who was very much not an athlete who baaaaarely squeaked by with a degree in communications at the UW (late 80s). It made me reassess his intelligence level.
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