I’ve been blogging as Pittsburgh Trademark Lawyer since October, and I still haven’t made a post about the Pittsburgh Steelers.  So with a four-game losing streak (hopefully) behind them and a road game tomorrow night against the Cleveland Browns, I figured that there’s no better time than now to boost Pittsburgh’s collective morale with a Steelers-related post.

And I figured there’s no better place to start than with the famous “Terrible Towel.”  If you’ve ever seen a Steelers’ game in person or on television, chances are you’ve seen fans waving the Terrible Towel.  (There were more than a few Terrible Towels in action at the Steelers’ recent Super Bowl victory.)  The Towel is basically just a piece of yellow/gold-colored terrycloth the size of a dish towel with black lettering that reads “Myron Cope’s Official The Terrible Towel A Pittsburgh Original.”

Here’s a close-up:

And here’s the towel in action:

Myron Cope, a Pittsburgh sports announcer known as the “voice of the Pittsburgh Steelers” for many years, is credited with inventing the Terrible Towel.   Cope assigned the Terrible Towel trademark to the Allegheny Valley School, a Pittsburgh-area institution specializing in intellectual developmental disabilities that has cared for Cope’s son, Danny, who has severe autism.  Proceeds of the Terrible Towel’s sales benefit the School.

Pitt Law Professor Michael Madison has blogged in the past about some interesting trademark issues related to the Terrible Towel.  Prof. Madison raises two interesting questions:  (1) Whether Cope’s assignment of the Terrible Towel mark to the Allegheny Valley School constituted a “naked license” in light of the fact that the assignment occurred before the rights to the Terrible Towel were registered with the USPTO; and (2) Whether the mark refers to discrete, identifiable goods/services (the registration simply is for “towels”), or whether the mark is the towel itself.

These are both interesting questions, and I’d suggest reading Prof. Madison’s posts for a thorough discussion of them.  Rather than address his questions, I’d like to throw out a question of my own.

How far do the trademark rights associated with the Terrible Towel go?  Here are some examples to provide context.

Players for the Tennessee Titans ignited a controversy by stomping on the Terrible Towel.  Then they apologized, sending autographed towels to the Allegheny Valley School.  Then they created their own towel.  And so have the Baltimore Ravens.  And the Cincinnati Bengals.

So how distinctive is the Terrible Towel?  It seems obvious that the rights should obviously be broad enough to prevent the creation of knockoff Steelers towels.  But what about other football teams that want to sell/distributed their own branded towels?  What about towels celebrating Pittsburgh or Pittsburgh sports generally?   In other words, could the idea of waving a towel at a football game achieve secondary meaning through acquired distinctiveness?

What about the Green Bay Packers’ “Cheesehead?”  More distinctive inherently?  More acquired distinctiveness?

These are certainly interesting questions.  At any rate, let’s cut to the chase:

Here we go Steelers!