Posts Tagged ‘Super Bowl’

When Policing Trademarks Goes Wrong

With the Super Bowl coming up this weekend, the NFL is in full swing protecting their intellectual property, ensuring that not only churches stay in line, as always, but politicians as well. With the Saints in the big game this year, however, the league also landed itself in the middle of a rather uproarious trademark dispute. Over the weekend, the Wall Street Journal reported that the NFL was issuing cease and desist letters to New Orleans clothing merchandisers, asserting rights to the term “Who dat?,” a popular chant used by Saints Fans. The full chant, “Who Dat Say Dey Gonna Beat Dem Saints? Who Dat? Who Dat?,” actually originated in the 60s, not with the Saints, but with local Louisiana high school teams. Saints fans, and the NFL thereafter, would eventually co-opt the chant for their own uses. [Sidenote: JT Money's Who Dat is completely unrelated. Dude is from Miami.] The NFL claims that the use of the phrase on merchandise creates a likelihood of confusion for fans as to where the goods originated. Such a likelihood of confusion is the threshold burden of proof in many trademark infringement disputes.

Confusion appears to have extended not only to the use of the phrase, but also to the NFL’s intention in issuing cease and desist letters. Soon after lawmakers, including state senators and Louisiana governor Bobby Jindal, got involved with the dispute, the NFL backed off of their claims, assuring fans, politicians and vendors that the whole situation is nothing more than a misunderstanding. The NFL now asserts that the league is only asserting a trademark right to the phrase when it is used in conjunction with the Saints logo, a stylized fleur-de-lis. Whether merchandisers can slap “Who Dat?” on a shirt with a generic fleur-de-lis image remains to be seen, but for anyone getting any ideas out there, I wouldn’t recommend it.

Thanks to our friend Chris Riser of Riser Adkisson LLP for tips related to this story.