On April 7, 2025, the Supreme Court ruled in favor of Kelly IP client Simply Wireless in a long-running trademark infringement lawsuit against telecom giant T-Mobile. The Supreme Court denied T-Mobile’s petition for certiorari that sought to overturn Simply Wireless’s win at the U.S. Court of Appeals for the Fourth Circuit.

The core issue in the lawsuit is whether T-Mobile committed trademark infringement by using one of Simply Wireless’s trademarks, SIMPLY PREPAID, in connection with the same types of prepaid cell phone products for which Simply Wireless has used that trademark.

In November 2022, the U.S. District Court for the Eastern District of Virginia granted summary judgment against Simply Wireless, holding that Simply Wireless lost its trademark rights when it paused its use of SIMPLY PREPAID in 2009 due to an industry-wide shift away from prepaid refills. Simply Wireless resumed using the trademark in 2012. Under federal law, nonuse of a trademark for three years creates a presumption of abandonment, rebuttable by evidence that the trademark owner intended to resume use of the mark.

The Fourth Circuit reversed, ruling that Simply Wireless had presented evidence showing “Simply Wireless’s timely intention to resume its use of the trademark SIMPLY PREPAID” during the three-year pause, thereby rebutting the statutory presumption of abandonment. According to the Fourth Circuit, Simply Wireless’s CEO “carefully explained in some detail Simply Wireless’s plan to resume such use, and he named the third party … that was negotiating with Simply Wireless during the presumption period” and “even identified the channel for distribution of Simply Wireless’s products.” Simply Wireless’s activities under the SIMPLY PREPAID trademark shortly after the end of the “presumption period” also corroborated the company’s intent to resume using its trademark during the three-year hiatus.

The Fourth Circuit also ruled for Simply Wireless on T-Mobile’s theory that common law trademark rights are lost without “continuous use” of a mark, regardless of the trademark owner’s intent to resume use. The Fourth Circuit held that the statutory abandonment test that focuses on a trademark owner’s intent applies regardless of whether the trademark at issue is federally registered.

T-Mobile attempted to undo its loss by filing a petition for certiorari arguing that the Fourth Circuit’s ruling on “continuous use” created a circuit split. After the Supreme Court requested a response from Simply Wireless, Kelly IP filed a brief in opposition, successfully arguing that the Fourth Circuit’s ruling was consistent with federal statutory law and longstanding practice in trademark cases. The Supreme Court denied T-Mobile’s petition.

The Kelly IP team includes Rob Litowitz, David Kelly, Jason Joyal, Saul Cohen, and Shelby McGowan. Simply Wireless is also represented by Cameron Ingersoll Roche and Clyde & Co.