Oklahoma Meets Ohio State For A Battle Over The “O” At The Trademark Trial And Appeal Board

The Big Ten and Big 12 are promised a big match-up this college football season. However, the battle will not be solved on the football field.

The Ohio State University has filed a Trademark Trial and Appeal Board action against the University of Oklahoma that concerns a trademark that Oklahoma is already allegedly using in commerce. Ohio State says that it is concerned there will be a likelihood of confusion with its popularized “O” logo should the mark register with the U.S. Patent and Trademark Office.

On December 7, 2017, The Board of Regents of the University of Oklahoma filed a trademark application to register the at issue mark. Oklahoma says that it has put that mark — a drum major marching with a uniform that has the letter “O” on his chest — in commercial use since August 2001. It now wants a federal registration attached for use connected to live performances by musical bands.

Not so fast, says Ohio State, which filed an opposition against the potential registration of the mark.

In the opposition action filed by Ohio State on August 29, Ohio State claims that it has used its “Block O Mark” since at least as early as 1898, including on the uniforms of drum majors and marching band members.

“Today, the Block O Mark is the heart of the branding and image of Ohio State and is used in connection with all products and services offered and provided by Ohio State, including educational, athletic, recreational, and musical,” states Ohio State to prove its opposition. “Indeed, the Block O Mark is permanently displayed in the middle of the football field at Ohio Stadium where millions of viewers have seen the Ohio State Buckeyes football team play its home games and have cheered on Ohio State’s marching band as it performs its famous ‘Script Ohio.'”

The position Ohio State now takes it that Oklahoma’s mark will cause consumers to naturally gravitate to the lettering on the drum major’s chest and falsely believe that there is some connection to Ohio State. The school also notes that the actual uniform worn by current Oklahoma drum majors during musical performances does not even display a standalone block “O,” which should add to the potential for confusion.

Oklahoma’s answer to the opposition is due by October 8. It will be required to address Ohio State’s claim of infringement and dilution based on the similarities of the marks at issue.