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    Who Dat Trademark Belong To?

    Blake Reid, Chilling Effects Clearinghouse, February 03, 2010

    Abstract: It's sunny and warm in south Florida as the New Orleans Saints head to the Super Bowl for the first time in the team's 42-year history. Back in New Orleans, though, a cold front is blowing through as the National Football League tries to use intellectual property claims to lock down "Who Dat," a seminal New Orleans slogan adapted by Saints fans to cheer on the team.

    In January, the NFL sent a cease and desist letter to New Orleans T-shirt shops Fleurty Girl and and Storyville, ordering them to stop selling shirts emblazoned with the "Who Dat" slogan. The NFL claimed trademark rights in the slogan, arguing that the shirts implied affiliation with the team. After public outcry led Louisiana governor Bobby Jindal to consider a lawsuit against the league, the league backed off, acquiescing to shirts emblazoned with "Who Dat" in black and gold, the Saints team colors. The league nonetheless maintains that clothing emblazoned with the slogan and the Saints team logo, a fleur-de-lis symbol, infringes the team's trademark rights. That claim, however, may rest on dubious legal ground.

    History of "Who Dat" and the Fleur-De-Lis

    The "Who Dat" slogan has a long and rich history of use in New Orleans dating back to minstrel shows and vaudeville acts in the late nineteenth century, possibly beginning with the song "Who Dat Say Chicken In Dis Crowd" by Paul Laurence Dunbar and Will Marion. Louisiana college and high school sports teams, including Southern University and Patterson High School, have used the slogan as a supportive chant since the 1970s. The chant didn't become associated with the Saints until 1983, when fans began using the chant at games, leading singer Aaron Neville and Saints players to record a version of "When the Saints Go Marching In" featuring the chant.

    The fleur-de-lis has an even longer history, dating back many centuries prior to its adoption as the Saints logo. Many modern sports teams, schools, and organizations as part of their logos, including the New Orleans Hornets (of the National Basketball League), the Fiorentina soccer team, the University of Louisiana at Lafayette, Saint Louis University, Washington University, several fraternities, and even the Boy Scouts. Perhaps more importantly, the symbol has also served as symbol for the city of New Orleans, particularly since Hurricane Katrina devastated the city in 2005.

    Trademark Law

    In light of the storied history of "Who Dat" and the fleur-de-lis, some believe that the marks belong to the public - and they are probably right. Trademark law serves to help consumers identify the source of products and services by protecting marks associated with a particular source, and at the same time protects the investment of a company's "goodwill" into its brand. But generic marks, which may indicate many possible sources, or no source at all, aren't protected under the law, because they don't help identify the source of goods. The widespread use of "Who Dat" and the fleur-de-lis by various institutions throughout New Orleans, Louisiana, and the rest of the country over the past century arguably makes them generic, and thus unprotectable, because the use of the marks doesn't signify a particular source. That is, a shirt with a fleur-de-lis or "Who Dat" on it doesn't indicate that the NFL or the Saints necessarily made it.

    In fact, neither the NFL or the Saints directly manufacture much, if any, of their "official" merchandise; since 2001, almost all NFL clothing has been manufactured by Reebok (an arrangement that the Supreme Court may deem illegal under antitrust law). Because the ornamental use of a team logo on clothing doesn't indicate the source of the clothing (i.e., Reebok, and not the NFL or the team), the league arguably doesn't even have the right to exclude others from making merchandise with team logos (though some courts have held to the contrary). By wearing Saints-branded clothing, fans may merely be showing their support for the team without knowing or caring who is producing the merchandise - and the NFL arguably doesn't have a right to profit from that support, except when fans buy the merchandise from the league itself.

    Even if the NFL can stop vendors from selling merchandise that explicitly references the Saints, the league doesn't have much of a leg to stand on when it comes to "Who Dat" and the fleur-de-lis. The goodwill surrounding those marks has been developed not by the NFL, but by the people of Louisiana and New Orleans, including Saints fans - and that goodwill arguably belongs to them. Louisiana Attorney General Buddy Caldwell agrees, calling the idea of the NFL and the Saints claiming either mark as a protectable trademark "ridiculous." While the NFL may have built up goodwill surrounding the league and its teams, "Who Dat" and the fleur-de-lis have arguably become a part of the public lexicon, and thus usable by everyone, not just the NFL.

    The NFL and IP Bullying

    Regardless of the validity of its claims, the NFL should think carefully before going after "Who Dat Nation" again - its residents aren't easily scared away. U.S. Senator David Vitter (the "Junior Senator" of the Nation) publicly called the league out, threatening to print and sell T-shirts with the phrase "WHO DAT say we can't print Who Dat!" And the NFL should also beware the Streisand effect; publicity of the league's cease and desist letter has driven customers in droves from the NFL's official outlets to Fleurty Girl's doorsteps. According to Fleurty Girl owner Lauren Thom, "What started out as a letter that scared the bejesus out of me, has turned out to be the best thing ever for my business."

    Of course, the NFL is not likely to be dissuaded; the league and its members are notorious for making overbearing intellectual property claims, such as going after an Indianapolis church for hosting a Super Bowl party for young parishioners. (Many organizations were forced to rename their gatherings as "Big Game" parties in response.) Saints quarterback Drew Brees even sued his mom for using his picture in a political campaign. And the league used the Digital Millenium Copyright Act to attack Chilling Effects founder Wendy Seltzer for posting a fair use clip of the league's infamously overbearing copyright notice.

    The NFL and the Saints reap tremendous benefits from the public: the goodwill associated with the long-standing Louisiana symbols of "Who Dat" and the fleur-de-lis have made the Saints more popular than ever, and the taxpayers even pay for the Saints stadium. By going after Saints fans, though, the league risks biting the hand that feeds. Instead of trying to chill New Orleans, the NFL should embrace the community that has rallied around the Saints. As they say on Bourbon Street...

    "Who dat? Who dat? Who dat say dey gonna beat dem Saints? Who dat? Who dat?"

    Hopefully not the league itself.


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