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Law360 (August 26, 2020, 9:51 PM EDT) -- The foundation behind the "Terrible Towel" rally towel beloved by Pittsburgh Steelers fans says an apparel company is selling COVID-19 masks that flagrantly infringe its trademarks, according to a suit lodged in Pennsylvania federal court.
The Eamon Foundation, which owns at least eight Terrible Towel trademarks, hit Time In Apparel with the infringement, unfair competition and unjust enrichment claims last week. According to the Aug. 21 complaint, the Steelers have an exclusive license to manufacture and market products featuring the trademarks.
The Eamon Foundation, which owns the "Terrible Towel" trademarks, claims an apparel company is selling COVID-19 masks that infringe its trademarks. (Court documents)
But this summer, Time In started selling what it called "The Terrible Mask" and related COVID-19 protective products, like gaiters, the Eamon Foundation said.
"The infringing products prominently display the Terrible Marks, in fact using the exact same stylistic lettering, and are obviously intended to trade off the popularity and goodwill associated with them," the foundation said.
The products also feature the "TM" mark, which suggests that they are authorized users of the Terrible Towel trademarks and sanctioned by the foundation or the Steelers, per the complaint. They're sold on the internet as well as in at least one grocery store.
According to the suit, the Terrible Towel concept was created by the late Myron Cope, a popular Steelers sports broadcaster. In 1996, Cope gifted and assigned all his rights to the trademarks to a school for intellectually and developmentally disabled people. In 2008, the school passed off the rights to its foundation, which is now the Eamon Foundation.
The Eamon Foundation said it sent a cease-and-desist letter to Time In, which has refused to stop selling the purportedly infringing products. Instead, the company's lawyer told the foundation that it had entered into a "non-interference" agreement in 1978 with Cope, according to the suit. Under that agreement, Time In had agreed not to challenge the rights of Cope to sell the Terrible Towel, and Cope had agreed that Time In could sell any other goods and products bearing the word "terrible," the lawyer allegedly said.
But Time In admitted it cannot locate a copy of any such agreement, and the foundation doesn't have one either, it said.
"This is because no such written (or oral) agreement ever existed," the foundation added.
The foundation seeks trebled damages, attorney fees and court costs in addition to an order forcing Time In to stop making the masks, according to the complaint.
Time In representatives and counsel for the Eamon Foundation didn't immediately return requests for comment Wednesday.
The Eamon Foundation is represented by Brian H. Simmons, Bryan H. Opalko and Eric M. Spada of Buchanan Ingersoll & Rooney PC.
Counsel information for Time In wasn't immediately available Wednesday.
The case is The Eamon Foundation v. Time In LLC et al., case number 2:20-cv-01250, in the U.S. District Court for the Western District of Pennsylvania.
--Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
