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Law360 (August 31, 2020, 5:22 PM EDT ) The foundation behind the "Terrible Towel" rally towel beloved by Pittsburgh Steelers fans has agreed to drop a trademark lawsuit against an apparel company that had been selling "Terrible Mask" COVID-19 face masks.
The consent decree filed Friday will end a lawsuit lodged on Aug. 21 by the Eamon Foundation, which accused Time In LLC of selling COVID-19 masks that flagrantly infringe its trademarks passed down from the late Myron Cope, a popular Steelers sports broadcaster.
Both sides admit no wrongdoing in the case, but said that they were entering into the consent decree "for the exclusive purpose of avoiding the risks, burdens and uncertainties of litigation."
Under the decree, Time In will stop selling or advertising its "Terrible Masks" and any products that use the Eamon Foundation's trademarks. It will also withdraw its attempt to register the name at the Trademark Trial and Appeal Board, according to the filing.
Counsel for the parties did not immediately return requests for comment Monday.
According to the complaint, Cope coined the term and concept "The Terrible Towel," of which he owned several registrations for. 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, now called the Eamon Foundation.
But this summer, Time In started selling what it called "The Terrible Mask" and related COVID-19 protective products like gaiters, the complaint said.
The foundation said it sent a cease-and-desist letter to Time In, which purportedly claimed that Cope had agreed to let the company sell any goods and products bearing the word "terrible" so long as it did not challenge Cope's rights to sell the Terrible Towel.
Time In admitted that it could not locate a copy of the agreement, however, and the Eames Foundation doesn't have one either — because "no such written (or oral) agreement ever existed," the foundation said.
The Steelers have an exclusive license to manufacture and market products featuring the trademarks, according to the complaint.
The foundation is represented by Brian H. Simmons, Bryan H. Opalko and Eria M. Spada of Buchanan Ingersoll & Rooney PC.
Time In is represented by John C. Thomas of The Webb Law Firm.
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.
--Additional reporting by Hailey Konnath. Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
