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“Terrible Towel” Lawsuit a Good Reminder to Consult a Trademark Lawyer

On August 21, 2020, The Eamon Foundation, owner of multiple trademarks related to the “Terrible Towel” waived at Pittsburgh Steelers (the “Steelers”) games, sued Time In, LLC d/b/a Time in Apparel (“TIA”) for trademark infringement, unfair competition, dilution and unjust enrichment. The lawsuit is a good reminder of the importance of consulting with an experienced trademark lawyer when branding a product or service. 

How can a trademark lawyer help protect brand owners and shelter companies from litigation?

The “Terrible Towel” Trademark Lawsuit

If you have ever tuned into a Steelers game, you would be struck by the amount of “Terrible Towels” that are waived by Steelers fans. A “Terrible Towel” is simply a rally towel in Steelers’ black and gold colors, with the phrase “Terrible Towel” emblazoned across it. The phrase was created by longtime Steelers broadcaster Myron Cope. Mr. Cope was the original owner of the Terrible Towel mark, and other related marks (the “Terrible Marks”), before generously assigning all of his ownership rights in the Terrible Marks to the Allegheny Valley School (“AVS”) in 1996. AVS is a private non-profit organization that provides services to individuals with disabilities. The Terrible Marks were then assigned to the AVS Foundation before being renamed as The Eamon Foundation. The Eamon Foundation has granted the Steelers an exclusive license to market, produce and sell products bearing the Terrible Marks. In early July, it came to the attention of The Eamon Foundation that TIA was selling face masks and gaiters, with the phrase “The Terrible Mask” across the front, in the same stylistic lettering as that of the Terrible Marks. Trademark lawyers for The Eamon Foundation sent a cease and desist letter to TIA, demanding that they stop all production and sale of the infringing products. TIA refused to cease and desist production and sale, claiming that it had obtained a valid license from Mr. Cope. When it was unable to produce evidence of such a license, The Eamon Foundation filed suit against TIA in Pennsylvania federal court on August 21, 2020. The parties have since settled the lawsuit, with TIA agreeing to recall all products that include or are similar to the Terrible Marks.

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Hiring a Trademark Lawyer

This lawsuit is a good example of how trademark lawyers can be invaluable to companies that want to protect their brands. During the life of the Terrible Marks, it is likely that a combination of Mr. Cope, AVS and The Eamon Foundation respectively hired trademark lawyers to: 1) file trademark registrations with the United States Patent and Trademark Office (“USPTO”); 2) assign the Terrible Marks from Mr. Cope to AVS and then to The Eamon Foundation; 3) license the Terrible Marks to the Steelers; 4) draft the TIA cease and desist letter; and 5) file the complaint against TIA in Pennsylvania federal court. On the other side of the equation, had TIA consulted with a trademark lawyer about its ability to use “The Terrible Mask,” litigation would likely have been avoided. 

If you are involved in a trademark dispute or need legal counsel in connection with your brand strategy, please email us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney. 

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