Terrible Towel Knockoff Won’t Hit the Shelves

PITTSBURGH (CN) - An enterprising Steelers fan violated the football club's trademark by selling a product called The Terrible T-Shirt, a federal judge ruled.

The Pittsburgh Steelers and the Allegheny Valley School Foundation filed suit, claiming that consumers would likely confuse the shirt as an official Steelers product because of its similarity to The Terrible Towel, a product the club has sold to fans for about 35 years.

Steelers broadcaster Myron Cope first trademarked the rally banner, which uses the team's black and gold colors, and passed his rights to the Allegheny Valley School Foundation in 2008.

This past spring, Eugene Berry, the eponymous owner of Eugene Berry Enterprise, tried to join the fun, trying to trademark The Terrible T-Shirt. Though the Steelers expressed its opposition, Berry ordered a shipment of black-and-gold shirts emblazoned with the phrase "The Terrible T-Shirt: A Pittsburgh Original."

National Retail Graphics asked Berry whether he was affiliated with the Steelers, so Berry allegedly doctored up a letter "purporting to be from the foundation that gave [Berry] authority to produce and sell the aforementioned tee shirt," according to the court.

The Steelers and foundation say Berry's were fraudulent because they did not have permission to use the mark.

U.S. District Judge Arthur Schwab agreed that shirt was likely to cause confusion, ruling for the Steelers Tuesday on summary judgment.

"While it is contested that defendants fraudulently produced a letter purporting to be from plaintiffs' to [Mark] Cornman at National Retail Graphics; it is undisputed that defendants' began to sell the tee shirt without receiving any specific approval in writing and knowing that the targeted market of Pittsburgh Steelers fans might view this as a authorized product," Schwab wrote.

Though Berry "had ample time to seek discovery," he still failed to establish "any specific material fact that would preclude summary judgment," the 13-page decision states.

"'The Terrible' has been a registered trademark and in continuous use for more then twenty consecutive years" and "illustrates the characteristics of both a fanciful, distinctive mark and of a famous mark," Schwab wrote.

Its fame and notoriety are clear, and it is one of the most famous sports rally towels in use, the court continued. "Where marks share an identical dominant word, this alone is strong evidence of likelihood of confusion," he wrote.

"Utilization of the word 'Terrible' along with similar coloring and a reference to 'A Pittsburgh Original' is an apparent attempt to create confusion to the tee shirts' source," according to the ruling.

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