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?
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.
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.
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.