IP Law Daily, TRADEMARK—7th Cir.: District court’s cancellation of clothing company’s 'This We’ll Defend' trademark registration upheld, (Jun 15, 2026)

By Carolin Dennis, B.Sc., LL.B., LL.M.

The district court did not err by dismissing a clothing company’s Lanham Act infringement claims and cancelling its federal registration.

The U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s dismissal of TWD, LLC’s Lanham Act infringement claims, and cancellation of its trademark registration, based on the priority finding in Grunt Style LLC’s favor. The appellate court agreed with the district court that Grunt Style LLC’s prior and continuous use of the mark “THIS WE’LL DEFEND” in connection with t-shirt sales created common law rights to that mark superior to TWD, LLC’s federal registration (Grunt Style LLC v. TWD, LLC, No. 25-1305 (7th Cir. Jun. 10, 2026)).

Grunt Style LLC (Grunt Style) sells patriotic apparel with the “This We’ll Defend” mark. TWD, LLC (TWD) owned the federally registered trademark “THIS WE’LL DEFEND” (U.S. Reg. No. 4880766). The parties’ use of the phrase “This We’ll Defend,” a historical slogan associated with the United States Army is limited, by agreement to clothing and online sales of clothing. After the parties sued each other for the trademark ownership of the “This We’ll Defend” mark, Grunt Style moved for partial summary judgment on TWD’s Lanham Act infringement and unfair competition claims. The district court found that Grunt Style had established common-law priority in the mark and dismissed TWD’s claims and cancelled its federal registration. The case went to trial on Grunt Style’s counterclaims, and a jury found TWD liable for infringement. The district court then entered final judgment, awarding Grunt Style damages and pre- and post-judgment interest and enjoining TWD’s further use of the mark. TWD then appealed asking the Seventh Circuit to vacate the district court’s damages award and permanent injunction, reverse its summary-judgment ruling, and order a new trial.

The Seventh Circuit noted that despite the many issues TWD raised on appeal, the dispute was fundamentally about who began using the “This We’ll Defend” mark first. The Seventh Circuit found that the undisputed material facts construed in TWD’s favor as the nonmovant showed that Grunt Style’s founder began using “This We’ll Defend” on Grunt Style’s clothing, company letterhead, and website which was accessible nationwide as early as 2011. Grunt Style continued to use the mark thereafter, including on invoices and at trade shows throughout the United States. These uses show “first, adoption, and second, use in a way sufficiently public to identify or distinguish Grunt Style’s goods.” Meanwhile, TWD conceded that its founder did not begin using the mark on clothing until September 2014. However, it argued that Grunt Style’s evidence failed to show a sufficient volume of sales before September 2014. Nevertheless, the Seventh Circuit noted that Grunt Style did not have to show either a high volume of sales or widespread recognition; its sales via “a publicly available website” that “was available nationwide,” plus its other uses of the mark in company materials and at trade events, were enough.

In addition, TWD argued that Grunt Style’s prior uses of the mark were solely “ornamental”—that is, use as decoration rather than as a means of identifying the product’s source. This ornamentality argument turned on the visual analysis of TWD’s expert, trademark attorney Eric Wachspress, which the district court excluded at summary judgment. TWD contended that this exclusion was itself an abuse of discretion, but the Seventh Circuit disagreed because not only did TWD fail to introduce evidence of Wachspress’s qualifications, as required by Federal Rule of Evidence 702, but Wachspress’s report repeatedly veered into impermissible conclusions of law on Grunt Style’s underlying rights. The Seventh Circuit was satisfied that the “size, location, and dominance” of Grunt Style’s pre-2014 uses of the mark including in small print on shirt tags made these uses indisputably source-identifying rather than merely ornamental. Thus, TWD’s efforts to contest Grunt Style’s prior rights in the mark were unpersuasive.

TWD also questioned whether Grunt Style proved “continuous” use over the relevant period, and suggested that Grunt Style’s 2014 dissolution in Georgia and immediate reincorporation in Illinois under the same business name somehow broke the chain of Grunt Style’s ongoing use. In addition, it picked out certain changes in Grunt Style’s sale numbers, product lines, and the positioning of the “This We’ll Defend” slogan on its website arguing that the company failed to actively stake out its rights in the mark. The Seventh Circuit agreed with the district court rejection of these underdeveloped arguments because the record showed a consistent pattern of public-facing use by the successive Grunt Style entities from 2011 onward. Further, the law does not require rightsholders to use the mark in precisely the same way, or on the same products, over time.

Therefore, the district court did not err when it found at summary judgment that Grunt Style’s use came first. Accordingly, the Seventh Circuit affirmed the district court’s dismissal of TWD’s claims, and cancellation of TWD’s trademark registration, based on its priority finding in Grunt Style’s favor at summary judgment.

The Case is No. 25-1305.

Judge: Per Curiam.

Attorneys: Matthew De Preter (Aronberg Goldgehn Davis & Garmisa) for Grunt Style LLC. Darren J. Quinn (Law Offices of Darren J. Quinn) for TWD, LLC.

Companies: Grunt Style LLC; TWD, LLC

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