The Saints, The Super Bowl and “Who Dat?”

Whether it’s “Ya Gotta Believe” for the 1973 New York Mets, “Commitment to Excellence” for the 1963 Oakland Raiders or “Win One for the Gipper” for the 1928 Notre Dame Fighting Irish, sports teams have long been associated with slogans. The Super Bowl champion New Orleans Saints is no exception. But it wasn’t until the Saints won their 
first visit to the Super Bowl, which often brings with it increased sales of sports apparel and memorabilia, that controversy began to rise about who owns the rights to the slogan “Who Dat?”

Seizing on the opportunity, several enterprising entrepreneurs began making and selling T-shirts emblazoned with the “Who Dat?” slogan. Some of these small businesses were served with cease and desist letters from the National Football League and a company called Who Dat, Inc., claiming infringement on the NFL’s and Who Dat, Inc.’s slogan.

Although sometimes mistakenly referred to as “copyrighted” material, slogans (like single words, logos, certain sounds and even some smells and motions) are considered to be trademarks, and as such, ownership in the United States is generally determined by use. Whoever uses a trademark first and continues to do so is usually deemed the rightful owner. One way of enhancing those rights is to acquire federal trademark registration. Aside from allowing the registrant to seek attorney’s fees, federal registration serves as constructive notice to anyone in the United States not to use the mark, unless their use predates that of the registrant.

In 1991, and again in 1993, Who Dat, Inc. filed intent-to-use trademark applications with the U.S. Patent and Trademark Office for a variety of apparel items, to include T-shirts. Although the mark was considered registrable both times, Who Dat, Inc. never filed a Statement of Use, so registration never issued. (In 1992, between these two applications, Who Dat, Inc. obtained a federal registration for “Who Dat?” for soft drinks, but the company let this registration lapse in 1998.)

In 2004, an individual from New York City filed an intent-to-use application for “Who Dat” for clothing. The application was opposed by both the New Orleans Louisiana Saints, LLC and NFL Properties, LLC in 2006, but the opposition was withdrawn in 2008. To date, this applicant has not yet alleged use of the mark nor have the Saints or the NFL filed their own applications for registration.

On January 7, 2010, after the Saints had made the playoffs and with the prospect of greater post-season sales, Who Dat, Inc. filed a third application for clothing, this time claiming a date of first use in commerce of October 26, 1983. This application is still pending, as are several intent-to-use applications for variations of “Who Dat?” filed by other individuals looking to capitalize on Who Dat fever.

After the NFL sent out its cease and desist letters, several prominent Louisiana politicians got involved in the dispute. Senator David Vitter wrote a letter to the Commissioner of the NFL, claiming that the slogan “Who Dat?” dates back some 130 years to minstrel shows and “was adopted by Saints fans in a completely spontaneous way.” Congressman Charlie Melanconlikewise voiced his disapproval of the NFL’s action, and on January 25, 2010, Governor Bobby Jindal proclaimed “Who Dat Nation Week” in Louisiana. So great was the outcry from Saints fans and their elected officials that the NFL eventually backed down. In a letter to Louisiana Attorney General James “Buddy” Caldwell, NFL senior vice president Gary Gertzog, the league confirmed Louisiana’s position that the NFL does not have exclusive rights to either “Who Dat,” “Who Dat Nation,” the French fleur-de-lis symbol or the colors black or gold.

The events of the last several weeks should demonstrate to everyone who’s claimed ownership in the “Who Dat” slogan over the last two decades or longer that waiting to protect one’s rights until a trademark suddenly increases in value is rarely the best strategy.

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