Who Dat Filing all Those Trademark Suits?
"Who Dat?" is a loaded question way down in New Orleans these days. For the uninitiated and/or Yankees among us (author included), "Who Dat" is the chant that Saints fans use to cheer on their beloved 2010 Super Bowl champs. As of late, the cheer is the subject of at least one cease and desist letter and one trademark suit.
According to a terrific and wide-ranging report on ChillingEffects.org, the first quarter play in the Who Dat battle began with the NFL hitting two local establishments with cease and desist letters for selling merchandise combining the Saints colors of black and gold, the team insignia (and that of the city, the state, as well the ancient French Royal family, the Bourbons, and other ruling European dynasties) of the fleur-de-lys and the saintly slogan, "Who Dat."
According to a complaint, kicking off what we will just call the second half of play, the NFL failed in its attempt to lay claim to the Who Dat phrase. This Complaint was filed March 4 by Sal and Steve Monistere, the owners of Who Dat, Inc. The brothers Monistere say they are the true owners of the actual Louisiana state trademark of the Who Dat phrase, as linked to the New Orleans Saints. The NFL is just one of the defendants in this suit.
The Monistere brothers detail in a 93 page complaint their "nurturing" activities, beginning in the early '80's, that made the phrase, once simply part of the culture of New Orleans, into the chant specifically related to support of their hometown football heroes. They reference the many licensing agreements entered into for merchandise (T-shirts, mug, lapel pins, sweatshirts... the list is endless) and the musical performances they produced, including one featuring the Neville Brothers.
As well documented as the Who Dat, Inc., Complaint is they have several roadblocks to ultimate success. The first, may be the "public domain" argument well outlined against the NFL by Chilling Effects. According to that article, the phrase "who dat" is interwoven into New Orleanian culture stemming from the vaudeville and mistral shows of the 1800's and morphing into team chants for local high schools as early as the 1970's.
The second hurdle, not an entirely legal one, is something Chilling Effects calls the "Streisand Effect," but which this blog will update by calling it the "South Butt Effect." By any name, the result is the same: the harder you try to stop something, the more the ensuing attention you bring to it increases its notoriety. The original "South Butt Effect" occurred when the famous outdoor apparel company, North Face, sued a then totally unknown "indoor apparel" company, South Butt, for trademark infringement. The suit and bullying posture of North Face only increased the sales and support of the upstart clothing purveyor. That case is on-going.
In the Who Dat case, it is clear that the local boys can take on the big, bad NFL. Regardless, the harder Who Dat, Inc., tries to hold on to something that just maybe, New Orleanians feel belong to all of them, the more it may slip away. No matter what a court says.
Related Resources:
- Who Dat Trademark Belong To? (ChillingEffects)
- Who Dat Incorporated files lawsuit over chant (WAFB News)
- North Face vs. South Butt: Is this the Start of a TM War? (FindLaw's Legally Weird)
- Legal Dictionary: Trademarks (FindLaw)
- Litigation FAQs (provided by John McDuff, Attorney at Law)
