Lawsuit alleges misuse of Terrible Towel trademark on face coverings

The owner of the Terrible Towel trademark, created by beloved Pittsburgh sports broadcaster Myron Cope more than 40 years ago, is suing an Indiana County store over its sales this summer of “The Terrible Mask.”

The lawsuit, filed by the Eamon Foundation in federal court in Pittsburgh, accuses the defendants of trademark infringement, saying they are improperly profiting from their sales of protective masks. A website lists the price of the masks at $15.

Cope gifted the rights to the Terrible Marks, as the lawsuit calls them, in August 1996 to the Allegheny Valley School, a nonprofit that provides services to developmentally disabled people. The AVS Foundation, which owns the Terrible Towel trademarks and receives the proceeds from sales to help those it serves, changed its name to the Eamon Foundation in 2016.

The defendants named in the federal lawsuit include Time In, which operates at 1200 School St. in Indiana, and Charles A. Goldberg, who the complaint said manages the store.

A message sent to the store was not immediately returned late Friday.

The lawsuit notes the Steelers are the exclusive licensee for marketing, production and sales of products using the Terrible Towel trademarks, and neither Goldberg nor the Time In store have been granted rights to sell them.

According to the complaint, during the first week in July, Goldberg and Time In began to market “The Terrible Mask,” as well as gaiters for use during the pandemic that use a font similar to those on the Terrible Towel.

“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 lawsuit said.

On July 13, attorneys for Eamon sent a cease-and-desist letter to the defendants, the complaint said, but five days later, they responded, refusing to stop the sale or production of the masks.

“Instead, amongst other ridiculous allegations, defendants’ counsel stated that Mr. Cope and Goldberg entered into a written ‘non-interference’ agreement in 1978 whereby ‘Goldberg would not challenge the rights of Cope to make and sell ‘the terrible towel’ (sic) and ‘(Mr. Cope) agreed that Goldberg had the right to make and sell any other goods and products bearing the word ‘terrible,’” the lawsuit states.

The defendants said in the response they could not locate either the original or a copy of the alleged agreement, the lawsuit said.

“This is because no such written (or oral) agreement ever existed,” Eamon’s attorneys wrote.

The lawsuit, which seeks an injunction, includes claims for trademark infringement, unfair competition, dilution and unjust enrichment.

Eamon is asking that the defendants be prohibited from creating or selling products featuring the Terrible Marks, and that they be required to contact every customer who purchased one of the offending products and tell them they were unauthorized.

Eamon is asking to be awarded damages in the amount of profits the defendants received through sales of the items.

“Defendants are deliberately attempting to trade upon the goodwill of Eamon and/or the Steelers by selling and advertising and/or intending to sell and advertise their goods as good bearing authentic Terrible Marks,” the lawsuit said.

At least twice in the past, two federal lawsuits have been filed for Terrible Towel trademark infringement.

One in 2012 for the sale of an Italian language Terrible Towel, which ended in a settlement, and another in 2011 for the sale of a “Terrible T-Shirt,” which ended in the foundation’s favor.

Michael Madison, a law professor at the University of Pittsburgh, said it is a violation of trademark law for someone unlicensed to use a mark commercially, which is likely to cause confusion among the public.

In the case of the “Terrible Mask,” Madison said, “the thing that leaps out at me is not the color scheme of black and gold, and the font, in and of itself is not a problem.

“It’s the word ‘Terrible’ in combination with the color scheme, in combination with the font, in combination with the fabric.”

Madison said the Terrible Towel is arguably one of the most powerful trademarks in Western Pennsylvania.

“It’s almost a requirement of citizenship to live here,” he said.