Intellectual Property

NFL Saints Fight Over the Who Dat Phrase Cheer

The fans of the New Orleans Saints, one of the teams playing in the 2010 installment of the Super Bowl, are collectively known as "Who Dat Nation." What, you say?

"Who Dat" is the catch phrase or cheer made popular by Saints fans, and its plastered all over New Orleans - and the state of Louisiana, for that matter. It's on banners, billboards, T-shirts, and bumper stickers. And that's the problem. Both the Saints and the National Football League (NFL) claim to own it.

What's "Who Dat?"

Since the 1980's, Saints fans have been chanting and otherwise using the cheer or phrase, "Who dat say dey gonna beat dem Saints." The cheer is often shortened to "Who Dat."

In the late 1980's, the New Orleans Saints filed a trademark with the Louisiana Secretary of State covering both the saying as well as the "fleur de lis," the symbol on the Saints' helmets and uniforms.

In simple terms, a trademark is a special, unique symbol, word, or phrase, sound, mark, or color that sets apart the trademark owner's goods and services from those made or sold by others. Trademarks also help assure consumers about the goods or services. A good example of a trademark is McDonald's "Golden Arches." If you stop at restaurant with this symbol, you can be assured that you're buying food made or prepared by McDonald's.

Only the person or company who owns a trademark may use the trademark, unless the owner gives someone else permission or a "license" to use it. Using a trademark without permission is called infringement. It's illegal, and the person who does it (an "infringer") may have to pay damages to the trademark's owner, including any profits he made through the illegal use.

As you can guess, use of a trademark can mean making, or losing, a lot of money, depending on your end of the deal. If properly licensed, both the owner and the licensee make money on goods bearing the mark. If not, only the infringer makes money, which usually doesn't please the trademark owner.

The Battle

With the Saints making their first Super Bowl appearance in team history, "Who Dat" gear and memorabilia is popping up everywhere. It led the NFL to send letters to several T-shirt makers in New Orleans who were making and selling T-shirts with "Who Dat" on them. Apparently, some shirts also bore the fleur de lis, and "NFL," and "Super Bowl." (The NFL owns the rights to the words "Super Bowl"). The letters, called "cease and desist" letters in legal jargon, demanded that they stop making and selling the shirts immediately, or else face legal problems.

Of course, the Saints claim to own the "Who Dat" phrase, as do two long-time Saints fans who claim they invented the phrase in the 1960's, before the Saints were in existence. (The Saints team was created in 1966-67).

Why the battle? Most likely, it comes down to money. The NFL doesn't want to miss out on its share of the profits. The Saints, of course, don't want to share their profits with the NFL, and private T-shirt makers and others want to use the phrase and make some money in a hard economy.

Truce?

The NFL and the Saints apparently ended the battle peacefully. According to James "Buddy" Caldwell,  Louisiana's Attorney General, the NFL has dropped its claim to "Who Dat." In addition, the NFL will object only to T-shirts and things marketed or presented as "official" Saints or NFL products. In other words, shirts that are black and gold and say "Who Dat" can be sold so long as they don't purport to be Saints or NFL licensed "gear" and don't include the fleur de lis or NFL. If they do, they're counterfeit and illegal.

Questions For Your Attorney

  • Can I get in trouble if I buy a T-shirt with "NFL" or the fleur de lis on it, but it doesn't have a tag stating that it's "officially licensed by the NFL?" Should I report the seller? With whom do I file a report?
  • Do I need a license or permit to stand outside the stadium and sell T-shirts to fans and passersby?
  • Can I use the phrase "Who Dat" on something completely unrelated to football to football and the Saints, such as the name of pub and grill?
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