A DISCUSSION OF LAW AND JOURNALISM

Who Owns “Who Dat”?

By Chris Cotter

This Sunday, the New Orleans Saints and the Indianapolis Colts are set to do battle for the National Football League title. But that’s just the battle being waged on the field. Off the field, it has been the NFL vs. clothing manufacturers, fighting for the title to trademark rights in Saints fans’ infamous battle cry, “Who Dat?”

With the specter of the biggest game of the season looming, the NFL had done anything but endear itself to Saints fans. Asserting its alleged trademark ownership, the league had sent numerous cease and desist letters to vendors of Saints gear selling “who dat” merchandise, which left many in the press wondering why the NFL was suddenly and aggressively protecting “its” trademark right to the phrase.  But history instructs us that the NFL rabidly attempts to trademark anything it believes has even a slight association with the league.

When it comes to trademarks, it’s all about identification. In order for anyone to successfully register a trademark, the mark must “[identify] and [distinguish] the source of the good of one party from those of others.” So the question of who owns the “Who Dat” trademark really turns on what people associate the phrase with.

“Who Dat’s” murky origins support the notion that no one owns trademark rights to the phrase.  Brothers Sal and Steve Monistere, owners of Who Dat, Inc. claim to own the “Who Dat” trademark by virtue of their 1983 collaboration with Aaron Neville and Saints players on the song, “When the Saints Go Marching In,” in which they incorporated the chant. But even this doesn’t put the matter to rest. Steve Monistere acknowledges that he first heard ‘Who Dat’ at a Saints game early in the ’83 season, before recording the song. Former Saint Dalton Hilliard contends that he heard the chant in 1979, while playing for the Louisiana state high school championship.  To further complicate matters, there is anecdotal evidence that the phrase itself has been around, mostly in songs, since the late 1800s. The fact that no one really knows its origin makes the public domain argument plausible.

Because “Who Dat” has become so identified with the Saints, and the Saints are an NFL team, the NFL is arguing that it owns the associated trademark and that “any unauthorized use of the Saints colors and marks designed to create the illusion of an affiliation with the Saints [and thus the NFL] is … a violation of the Saints [and the NFL’s] trademark rights, because it allows a third party to ‘free ride’ by profiting from confusion of the team’s fans.”

But, the NFL isn’t claiming ownership over all uses of “Who Dat.” Rather, it’s only claiming trademark rights over those instances when the phrase is used alongside some other Saints identifier, like the fleur-de-lis logo and the team’s black and gold colors  or the NFL logo (the league contends its earlier and seemingly broader assertion was just misunderstood). In other words, the NFL is only claiming ownership of “Who Dat” when consumers might associate the phrase with the Saints, thus creating the impression that the NFL has officially licensed such uses when it has not. So while someone could market a t-shirt with the words “Who Dat” stamped on the front, he or she could not market a t-shirt with the words “Who Dat” AND the Saints logo (as illustrated here). In theory, this protects consumers from confusing “knock off” and official merchandise, but in practice, it also protects the value of obtaining a license to market NFL gear.

Some opposing the NFL’s asserted right claim that the phrase is in the public domain, and thus no one owns it. In copyright law, if something is in the public domain, no one can claim copyright in it. However, in Trademark law, even if something is “in the public domain” for copyright purposes, it may still be trademarked for certain uses that identify a certain good with a certain source. In this instance, because most consumers would identify the phrase “Who Dat” alongside a fleur-de-lis and in a black and gold motif, with the Saints, the NFL has a pretty good argument that it should hold a trademark in the phrase.

Were the NFL asserting trademark ownership in “Who Dat” generally, that would be a different story altogether. But while it may not do much for Saints fans’ sensibilities, legally, the NFL’s claim that it holds a trademark in uses of “Who Dat” alongside official Saints or NFL logos is legitimate.

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