The Terrible IP Towel

It’s Super Bowl week here in Pittsburgh, and under the local bloggers’ code all posts must have something to do with the Pittsburgh Steelers.

Fortunately, there is no shortage of IP-related blog fodder when it comes to Steelers-mania, and today’s Times brings the best of all possible examples, a story that recounts the true meaning of the Terrible Towel.  More after the jump.

As most sports fans know, the Terrible Towel is the icon of modern Steelers fandom.  It’s a piece of gold colored terrycloth the size of a dish towel, marked with a “Terrible Towel” logo that reads “Myron Cope’s Official The Terrible Towel.”  Cope was a sportswriter turned broadcaster for the Steelers who “invented” the towel in the mid-70s, in the middle of the team’s series of Super Bowl titles.  Wherever the Steelers play, a blaze of twirling towels signals the presence of Steelers Nation.

As most of Pittsburgh knows, and as the Times (and no doubt other media) are now explaining to the country, the charm of the Towel lies largely in the fact that about a decade ago, Cope assigned the trademark in the Towel to the Allegheny Valley School, a not-for-profit in the Pittsburgh region that has cared for Cope’s disabled son Danny for roughly 40 years.  Over the years, sales of the Terrible Towel and related merchandise have generated a substantial amount of cash for the School.  The Steelers don’t get any of the money.

Careful readers watching for the IP angle will have noticed a couple of things.  One, that the Terrible Towel itself was registered as a mark many years ago; two, that Cope himself owned the trademark in the Towel; and three, that the trademark in the Towel has been assigned outright to the School.

In Pittsburgh, the late Myron Cope is regarded as a cultural treasure at a level just below Fred Rogers and a notch or two above Arnold Palmer, Andy Warhol,  Gene Kelly, and maybe (I’ll go out on a limb here) above Willie “Pops” Stargell, Franco Harris, Jerome Bettis, and Bill Mazeroski.  Even in death, Cope is beloved roughly as much as Barry Bonds was despised even before the Balco affair developed.  As the joke goes, Cope had a face for radio.  He also had a voice for print,  which is a good thing, since he was a highly-regarded and talented writer before he stumbled into the broadcast business relatively late in his career.  The voice, however, is what endeared him to Pittsburghers; it was as distinctive and authentic a sporting voice as most of us have ever heard.  Partly because of the connection between the Towel and the School, but also because of the iconic status of Cope himself, the idea of anyone counterfeiting the Terrible Towel would strike most Pittsburghers (and in this one must include all of Steelers Nation) as sacrilegious.

Now that I’ve fanned flames and warm feelings for Cope and the School, let them cool.

Trademark to what, exactly?  The original registration claimed a drawing of the mark in connection with “towels.”  Subsequent registrations have claimed both the logo design and the phrase “Myron Cope’s The Official Terrible Towel” as a word mark in connection with a variety of goods — including gloves, pillows, aprons, footballs, and those tiny flags that fans mount on the side windows of their cars.  Trademark doctrine and trademark registration practice regard all of this as mostly commonplace.  The lawyers prosecuting the registrations are among Pittsburgh’s most distinguished IP practitioners.  The mark is a distinctive phrase and design affixed to tangible products distributed in commerce and reasonably understood to originate with a single, common source.

What is that source?  A school for the disabled, today (and which may have been on the receiving end of a naked license), and before that, a radio and television broadcaster — neither of whom ever has been associated with the actual production of towels (or gloves, aprons, flags, or footballs), except insofar as they are understood to be the sponsor (Cope) and beneficiary (School) of the trademark itself.

In trademark law, in other words, is this a classic case of a trademark that consists of a merchandising right, a logo that is valuable and meaningful independent of its association with specific goods or services, rather than a mark that publicly signals the source of goods or services that are valuable in themselves and for reasons other than their association with the mark?   Unlike a Boston Bruins ice hockey logo, the Terrible Towel design mark would make no sense on a standalone basis (it even makes no sense, it seems to me, on gloves, aprons, flags, and footballs).   Notwithstanding what the registration says in order to comply with Lanham Act rules, the Terrible Towel mark is the Terrible Towel itself, the design plus the cheap terrycloth that it is painted on.  I can go to the store and buy a cheap gold terrycloth towel and wave it at a Steelers game, and I could even paint my own version of the design on the towel, but the act has no meaning.  A Terrible Towel bears the authorized design.  Likewise, I could imagine the existence of a window decal or cloth badge that bears the Terrible Towel design, but the item would signify nothing. A Terrible Towel is something that a Steelers fan waves.

So this may not be a classic merchandising right situation.  If the mark signals anything, it doesn’t signify source or sponsorship by Myron Cope or the Allegheny Valley School.  It signals association with the shared narrative that defines Steelers Nation:  the death of Pittsburgh during the 1970s and its metaphoric rebirth on the football field and in communities across the country that were populated by what we now sometimes refer to as a Pittsburgh Diaspora.

A few years ago, a former student of mine tried to market t-shirts with a likeness of former Steelers coach Bill Cowher (he of the jutting jaw) accompanied by the phrase “The Terrible Scowl.”  The lawyers for the Allegheny Valley School came down on the guy pretty hard, and he was lucky to get away with an agreement that he would never try anything like that again.  But I thought then, and think now, that the claim was off-base, and not just because I think that likelihood of confusion would be low.  Even if the iconography of the Terrible Towel itself carries a powerful sort of goodwill, I’m not convinced that this is the kind of goodwill that trademark law was or should be designed to deal with.

But is there a better alternative?

Updated at 5 pm:  Not a better alternative, but a batter alternative.  I am supplied with a link to an “officially licensed” Terrible Towel cookie.  Is the trademark system consuming itself?   Suppose I were to produce and sell rectangular cake cookies, with gold icing, that are roughly the size of the TT cookies to the left.  I market them as “Terrible Cookies.”  Am I an infringer?  I would be behaving badly in terms of Pittsburgh community norms.  Would I be causing consumer confusion or appropriating any goodwill that is properly recognized by trademark law?

Go Steelers, and as Cope and many Pittsburgh natives would say, bye now!