Who Dat Holds The Trademark To Who Dat? NFL Threatens While WhoDat Inc. Asks Why?

from the who-dat-say-dey-gonna-beat-dem-trademarks dept

It seems like every year there's some sort of controversy over trademarks and the Superbowl. Of course, the NFL has been famous for aggressively defending trademarks. For example, it's been so aggressive in claiming that no one other than official sponsors can even mention the word Superbowl (even though it should be legal if used descriptively and accurately), that when many advertisers started switching to the euphemism "The Big Game," the NFL tried to trademark that too, even though it wasn't even the one who had come up with the phrase. This year, apparently, the big issue is over who owns the phrase "Who Dat" which is apparently a catch-phrase associated with the Superbowl- Big Game- Final Sporting Event Of The Football Season-bound New Orleans Saints. The NFL apparently claims that it holds the trademark on the phrase and is threatening some retailers who were offering "Who Dat" merchandise. Only problem? There's a company called WhoDat Inc., and it claims to own the trademark. a-dub points us to an interview with the brothers who own WhoDat Inc., who also recorded the Who Dat song back in the 1980s. It appears the issue, from the NFL, may be with the use of a fluer de lis with the phrase, since the NFL owns the trademark on the fleur de lis in association with the Saints. But the WhoDat folks say even there the NFL is overstepping its bounds:
"Sure, a fleur de lis can belong to the Saints, but in very specific usage, and everybody knows what that is," Monistere explained. "If you go back to 1967, to date, they have registered and used the fleur de lis in a very specific way. They put it on the Saints helmet and on the Saints 'shield.' Its colors are very specific -- they're 'old gold and black.' But for the NFL to expand that definition and say that no matter what color and what style of fleur de lis, if you put it on an item, it means Saints, it is, as many believe, is just not correct. The fleur de lis belongs to everyone including the people of New Orleans.
The Monistere brothers seem particularly annoyed by the NFL bullying small t-shirt makers, saying that they're more than happy to grant licenses to those folks to produce Who Dat merchandise, and merchants have said that the NFL communication has been tremendously threatening and aggressive, while the Monistere's have been quite friendly and accommodating. In fact, the Monistere's seem particularly annoyed that the NFL is bullying small shop owners like Fleurty Girl, who received a cease-and-desist:
"Here we are going to the Superbowl for the first time in 43 years and these NFL guys are here harassing the local small businesses," Monistere said. "Their merchandise sales are well over $320 BILLION a year! The NFL has become an intellectual property company. They make money selling their logos and image. With that kind of money coming in, they focus their attention on Fleurty Girl? I don't have a problem with them protecting their intellectual property, but when they do it to the extent of trying to intimidate people into believing that the Fleur de lis is theirs -- well, that's just a bullying technique."
As for the New Orleans Saints themselves? The organization there has apparently publicly said that WhoDat holds the rights on the trademark.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Mike Eber, Jan 29th, 2010 @ 6:48am

    "Who Dat?" Mark

    WhoDat, inc. has also just recently filed (Jan 7) for another "Who Dat?" trademark relating to clothing and music.
    See USPTO

     

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  2.  
    icon
    Josh in CharlotteNC (profile), Jan 29th, 2010 @ 6:49am

    Prior art

    We need to have a prior art defense added to trademark law. I think a symbol used since the dawn of civilization (7000-10,000 years ago) would qualify.

    http://en.wikipedia.org/wiki/Fleur-de-lis

     

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  3.  
    icon
    Nikropht (profile), Jan 29th, 2010 @ 6:56am

    Re: Prior art

    I totally agree. Trademarks have gotten crazy.

     

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  4.  
    identicon
    Noah Body, Jan 29th, 2010 @ 7:26am

    i can haz breathing

    since i now proclaim that i own the concept of breathing everyone owes me some cash... i'm glad i go to this before the nfl!

     

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  5.  
    identicon
    Anonymous Coward, Jan 29th, 2010 @ 7:27am

    Re: Prior art

    province of Quebec

     

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  6.  
    identicon
    Anonymous Coward, Jan 29th, 2010 @ 7:33am

    I'm fairly certain the only group that could lay any claim to the fleur de lis would be the french, this should be a case where the NFL is told to fuck right off and fined for anti competitive practices and general asshole behavior.

     

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  7.  
    identicon
    Hiccup, Jan 29th, 2010 @ 7:45am

    Re:

    "fined for ...and general asshole behavior"

    If only we could....if only....

     

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  8.  
    identicon
    AC, Jan 29th, 2010 @ 8:01am

    for Pete's sake..

    ...the Fleur de lis has a flippin' unicode symbol. The NFL has, if nothing else, a huge shining pair of brass.

     

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  9.  
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    Free Capitalist (profile), Jan 29th, 2010 @ 8:12am

    Re: Prior art

    I totally agree in principle. However, I worry that if they codified the prior art defense, the prior art defense would be nullified in most cases, just as the "fair use" defense was gutted by its inclusion in copyright reform.

     

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  10.  
    identicon
    Anonymous Coward, Jan 29th, 2010 @ 8:33am

    Fluer de Lis

    Not to mention that this symbol is found in countless architectural designs going back hundreds of years. It is all over the Capitol building, the Library of Congress, many of the buildings in DC (I am sure it is the same way in buildings all over this country for sure). You can't even begin to count them in this country, forget about in France. Is the NFL going to claim trademark infringement of these. That would be a very short case, I would love to see the judicial slapdown on that one!

     

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  11.  
    identicon
    Anonymous Coward, Jan 29th, 2010 @ 8:38am

    The 2 most annoying things in recent memory...

    1. Wassup?
    2. Who dat?

    My God, how I hope we get past this newer one quickly!!

     

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  12.  
    identicon
    Anonymous Coward, Jan 29th, 2010 @ 8:38am

    Fleur de Lis

    The Fleur de Lis is a very old symbol, and it is associated with the Boy Scouts from their origin, and I would lay odds it appears on family arms going back centuries.

    The NFL clearly needs to put a stop to that.

     

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  13.  
    identicon
    Chris, Jan 29th, 2010 @ 9:04am

    Fleur de Lis

    Not only is it on the Quebec (canada) provincial flag, it's on many other crests as well. A quick wikipedia search clearly shows that:
    http://en.wikipedia.org/wiki/Fleur-de-lis

     

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  14.  
    icon
    Robin Smith (profile), Jan 29th, 2010 @ 10:42am

    Re: for Pete's sake..

    ⚜Screw the NFL⚜

     

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  15.  
    icon
    kevjohn (profile), Jan 29th, 2010 @ 10:44am

    Who Dey allowed the Saints to steal and barely modify the Bengal's rallying cry from the 80's? What's up with Dat? (Yes, there are different versions of this story. But this is the one I'm going with!)

     

    reply to this | link to this | view in thread ]

  16.  
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    Sean T Henry (profile), Jan 29th, 2010 @ 11:03am

    Re:

    Who DEY!!!

     

    reply to this | link to this | view in thread ]

  17.  
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    HymieS (profile), Jan 29th, 2010 @ 12:00pm

    R U Kidding me?

    First of all,,, Let's go back to the 1940's when a young black actor in an Abbott and Costello move ( I believe it was "Hold that Ghost" ) hollers out "WHO DAT?". He then gets a reply from some distance away that repeats "WHO DAT?". He then replies with "WHO DAT SAYING WHO DAT WHEN I SAY WHO DAT?". This was over 60 years ago and the expression "WHO DAT" is in the public domain and cannot be copyrighted by anyone except,possibly, the movie studio.
    The expression WHO DAT was a very common slang expression for answering a knock on the door during the 50's. Especially in NYC.
    As for the Fleur de Lis,,,
    It has been shown and printed in every color combination imaginable on everything from the coats of arms to the flags of European households and royalty, especially the French monarchy. This symbol has been around for over 500 years and it too is considered 'public domain'. I myself have seen a family crest that has a Fleur de Lis on it, and it hails from the Austrian, Hungarian, Russian branch of the family. Coincidentally it happens to be in the same colors as the team in LA.
    Who does the NFL think they are kidding,,,? How can they even think to claim a copyright on things that have been in the public domain for ages.?

     

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  18.  
    identicon
    Lee, Jan 29th, 2010 @ 12:59pm

    Who Dat.

    Joel Chandler Harris published it in 1881. See his LEGENDS OF THE OLD PLANTATION in the aptly named chapter 7 "Mr. Fox is again Victimized" where he wrote "Who dat" a number of times. I guess he is out of copyright but that is the first published incidence I could find.

     

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  19.  
    icon
    Pickle Monger (profile), Jan 29th, 2010 @ 1:21pm

    The fleur de lis belongs to everyone including the people of New Orleans.

    And since we founded the Louisiana, I want my cut, tabarnac! :-)

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Claudette, Jan 29th, 2010 @ 1:59pm

    Who Dat?

    lol I have one of the Who Dat? sweatshirts, WITH THE TM logo under the saying....http://www.facebook.com/?ref=home#/photo.php?pid=84127&id=100000574642498

     

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  21.  
    identicon
    Anonymous Coward, Jan 29th, 2010 @ 2:10pm

    Let's get this straight: The earliest verifiable instance of Who Dat is in the 1890's with the recording of "Who Dat Say Chicken". Since then, sporting events all over Louisiana have had newspaper stories written about them that include the fact that the fans chanted "Who Dat"; most notably the Patterson Lumberjacks in 1979 (though, if you have older generational family in NOLA, they'll tell you it was the St. Augustine Saints game of 1956).

    The earliest the Bengals can claim their "Who Dey" is 1981 (as per http://bengalsjungle.com/whodeyorigin.html). Last I looked, 1979 and the 1890's pre-dated 1981. Screw dat, the Bengals did not invent Who Dat, and the NFL sure as hell doesn't own it. Who Dat, if it belongs to anyone, belongs to the people of Louisiana and we will defend it with every breath we've got!

     

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  22.  
    identicon
    Anonymous Coward, Jan 29th, 2010 @ 2:26pm

    *correction, that's the St. Aug Purple Knights. My fingers got all tangled up in my thoughts.

     

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  23.  
    identicon
    Kdub, Jan 29th, 2010 @ 3:07pm

    Disgraceful Bullying Tactic by NFL

    There is suspect, at best, substance to the NFL's intellectual property claims. I hope someone challenges the league; you have to stand up to the bully, not simply take repeated stomach punches.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    also anonymous, Jan 29th, 2010 @ 3:48pm

    Re:

    This!

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, Jan 29th, 2010 @ 5:29pm

    Re: Re: Prior art

    >province of Quebec

    Blame Canada why don't you.

     

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  26.  
    icon
    Bastid (profile), Jan 29th, 2010 @ 6:12pm

    Re:

    "newer one" we've been chanting the phrase for decades

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, Jan 29th, 2010 @ 8:15pm

    Re: Re:

    ""newer one" we've been chanting the phrase for decades"

    Perhaps, but it's only been the past couple of weeks that it's been plastered everywhere across the country.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, Jan 30th, 2010 @ 9:35am

    Big Sports (TM) strikes again

    Something crazy like this is bound to happen every year when the Big Game rolls around. Regular as clockwork.

    It's not like they don't have enough money already. Then again, when your primary employees are a bunch of whining primadonnas that think twelve million a year for running around a field isn't enough, then maybe they do have a point.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Lenny, Jan 30th, 2010 @ 11:29am

    Re: Who Dat!

    Actually, check out the origins of Who Dat...

    http://en.wikipedia.org/wiki/Who_Dat%3F#Origins

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Jan 30th, 2010 @ 1:24pm

    i have seen these t-shirts for years and if the saints were not going to super bowl nothing would be mentioned

     

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  31.  
    identicon
    Anne Hooter, Jan 31st, 2010 @ 7:11am

    Who Dat

    We, the people of WHO DAT nation, Finds Mr. Tom Benson, owner of the New Orleans Saints, guilty of Treason! Let it be known, On January 25, 2010 Mr. Benson filed with the State of Fla. The Who Dat trademark. Mr. Benson, after supporting your team since its inception you have bent us over and undeniably screwed us for excessive financial gain.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    David Smith, Feb 1st, 2010 @ 4:55am

    Bigfoot (tm) (R)

    Who else is sick and tired of these corporate Bigfoots trying to claim common property and make the rest of us pay for it? Everyday words, everyday phrases, family names, symbols like the fleur-de-lis that have been around for centuries . . . get the hell out of here with this stuff. If anyone's gonna pay, you pay us for the aggravation of telling you where to go.

    Bigfoot . . . I probably owe someone a license fee for that huh.

     

    reply to this | link to this | view in thread ]

  33.  
    icon
    tintin (profile), Feb 1st, 2010 @ 12:10pm

    Re: Re: Re:

    Don't worry if you are not in new orleans it should not matter. America and the NFL need to forget about New Orleans again. Oh and please NFL commentators shut up about Katrina we don't want to hear about it again. There is nothing like a new orleans party hearing Who Dat walking down the streets.

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Jay, Feb 1st, 2010 @ 7:18pm

    Who Dat

    Who Dat Who Dat gonna give the NFL the finger!!!!! They don't own every phrase that fans develop. If they owned it they should have asserted their rights many years prior to Saints making the Super Bowl. They need to back off!

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Chelsea, Feb 2nd, 2010 @ 11:17am

    Just how far is too far

    No doubt that if the saints is not going to the game this year, none of this would occur
    Coach Payton says he's not quite familiar with the business side but believes that it should belong to everyone
    http://www.newsy.com/videos/the-who-dat-spat
    no fun league is fast enough to realize no one's on their side on this issue and blames everything on a "misunderstanding", but sure enough, it'll come back sometime to the next saints

     

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  36.  
    identicon
    T upton, Jul 27th, 2010 @ 2:03am

    NFL must watch their step

    As a representative of the Upton family. We have used the gold fleur de lis on a black background since before the America's was even discovered. If this was to become a matter of legal precendence then we have the right to sue the NFL into closure and shutdown the Saints for illegal use of our family crest which has been in existance since the 12th century.
    NFL - Get a life. But more important, stop trying to force your rules on others or you will be prosecuted.

     

    reply to this | link to this | view in thread ]


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