So, all over the local news right now is the story of how the NFL has sent cease & desist letters to New Orleans businesses retailing “whodat” branded apparel combined with fleurs des lis &/or the colors black and gold. It’s pretty exciting that anyone in Louisiana is excited about IP even a little bit, and the situation is pretty messy- I could write a whole article about it, but frankly it’s likely to be a flash in the pan story. Instead, I’ve summarized some interesting facts:
1) The purpose of trademark law, generally speaking, is to give business entities a mechanism for protecting their brands, on the theory that this protection helps consumers associate goods/ services/ products with a particular user experience or level of quality.
1a) The Saints, and the NFL, spend a ton of money trying to get people not just to watch football games, but to buy official Saints merchandise- or more accurately, to create enough of a market for that merchandise that they can sell the manufacturing rights for even more tons of money. Keep in mind that without trademark protection, this wouldn’t be something worth selling, since any manufacturer could make and sell NFL-branded gear. The law creates the product. Whether that’s a good thing or not is something for you to decide.
1b) Who actually gets awarded the merchandising contracts is actually the subject of a pretty interesting current Supreme Court case, American Needle vs. NFL.
2) Reebok’s got the exclusive contract with the NFL right now for all merchandise, and makes a bunch of “Who Dat” labeled products.
4) In order to keep their trademarks, owners are required to proactively “defend” them (usually by sending nasty letters), or risk having those marks deemed “abandoned,” in which case they basically stop being property that can be licensed, etc. The problem with folks calling to eg. boycott NFL sponsors until the Saints give “Whodat” back to the people is that this kind of voluntary abandonment would probably involve breaching a fat contract with Reebok. Again, up to you to decide if that’s a bad thing.
5) The trademarks (there are actually two) in question are actually only registered at a state level. This isn’t legal advice, but it seems Whodat still belongs to The People outside of LA. That said, I checked the national registry and there is a Federal trademark on “Who Dat?” for apparel, owned by some guy who runs a leather boutique in NYC.
6) Part of the problem here is that whoever approves trademarks at the state level seems to be operating under some edict pretty far removed from that “prevent consumer confusion” goal I was talking about before. Check out this selection of other current, apparently valid Louisiana Whodat trade/service marks & trade names. As far as the State of Louisiana is concerned, these are totally distinct from the Saints’ mark. Think there’s any chance of getting any of the businesses behind these products confused with the Saints? Or with each other? If you do, ask yourself “what’s the point of protecting trademarks at all if we can have a whole bunch of competing ones? Who approved all these similar marks? And where is the oversight?”
KREWE OF WHO DAT
(registered to Who Dat? Inc.)
(paper goods, clothing, advertising)
WHO DAT NATION? WE DAT NATION
BLACK AND GOLD WHO DAT!
WHO DAT NATION FAN CLUB
“WHO DAT SAY HELL AIN’T FREEZING OVER GEAUX BOYS” & LOGO: BUMPER STICKER GOLD WITH BLACK LETTERS & TWO FLUER DE LIS’, ONE ON EACH END
(paper goods, clothing)
WHO DAT’ITUDE, LLC & LOGO: IS A FLEUR DE LIS WITH WHO DAT’ITUTE GOING ACROSS AT AN ANGLE
(paper goods, clothing & toys)
WHO DAT KIDS CLUB
(paper goods, clothing, advertising)
WHO DAT LADIES
(clothing, jewelery & papergoods)
WHO DAT & LOGO: THE WORD “WHO” FOLLOWED BY A WORD FORMED USING A “D”, A FLEUR DE LIS, “T”
THE WORD “WHO” FOLLOWED BY THE WORDS “DAT” FOLLOWED BY THE LETTERS “N,A” A “FLEUR DE LIS” SYMBOL AND THE LETTERS “ION”
“WHO DAT STATION” & LOGO: A STATION TYPE BUILDING WITH AN OPEN EXPOSED ROOF THAT DISPLAYS AN ENCLOSED FOOTBALL FIELD WITH “WHO DAT” SUPERIMPOSED OVER THE TOP/REAR ROOF SECTION AND SILHOUETTE OF BIG CENTRAL CITY BUILDINGS IN THE BACKGROUND WITH RADIO SIGNAL/WAVES EMITTING WHILE..
(paper goods, clothing, advertising)
WHO DAT?, INC. & LOGO: THE WORD “WHO” FOLLOWED BY THE WORD “DAT” FOLLOWED BY A QUESTION MARK WHICH HAS A CARTOON STYLE ROUND FACE AS THE PERIOD. ALL IN BLOCK STYLE LETTERS IN BLACK WITH WHITE TRIM, ALL ON AN ORANGE BACKGROUND.
(paper goods, housewares, toys, staple foods, advertising)
WHO DAT DREAM
(clothing, jewelery, paper goods)
WHO DAT? & LOGO: BLOCK LETTERS SPELLING “WHO DAT” FOLLOWED BY A QUESTION MARK. COLOR- YELLOW OR GOLD OUTLINED IN BLACK.
(meats & processed foods)
WHO DAT BREW & LOGO: “NEW ORLEANS BREWERY CO. U.S.A.” IN BLACK PALATINO LINOTYPE, “WHO DAT BREW” IN BLACK PALATINO LINOTYPE, ARRANGED IN AN ARCH PATTERN AT THE BOTTOM OF THE LABEL. LIGHT GOLD BACKGROUND WITH SMALL DARK GOLD FLEUR DE LIS LARGE GOLD FLEUR DE LIS IN THE CENTER WITH PURPLE SHADED EDGES.
WHO DAT! LAWN CARE
WHO DAT HAIR
(pop in hair extensions)
7) A side note: why is the NFL firing off these nastygrams on a trademark actually owned by the Saints? If this is a question that burns within you, you might want to read more about American Needle and its history.
8) There are some other trademark issues like dilution that are relevant, but not explored here. The NFL guy interviewed in the Times-Pic made a point about this. Basically sometimes a trademark holder can enforce her right against a maker of something not covered by the trademark (like, say, pop in hair extensions) if it threatens public association with the term in any of a variety of ways.
So basically the news/internet is freaking out about some nasty letters. In theory something more could happen with this story, but it’s probably not going to. The retailers will probably get scared off and eat the cost of some shirts. The NFL isn’t actually obligated to sue to defend their mark, just show they made an effort. The retailers might have more of a chance than they realize in court, but it’s not a slamdunk for them and they probably won’t want to risk it. People will still use Whodat mostly to talk about the Saints, and occasionally in other contexts. Someone will sell bootleg t-shirts on the street “in protest,” and probably make a little money without getting caught. The NFL will continue to feel like populist entertainment most of the time; but glimpses of the bajillion-dollar licensing machine will occasionally be visible behind the curtain.
And ultimately, if you’re that worked up about it, there’s nothing stopping you from dusting off the ol’ BeDazzler, picking up some glitter puff paint, & making your own fan gear that says whatever you want it to. Trademarks only apply to uses in commerce- so all this hoopla is about what you can buy, not what you can wear.
Update: An Associated Press article reports that the NFL has stepped back from the position in the C&D, stating that it does not own exclusive rights to the phrase nor the colors black and gold unless “marketed as a Saints or NFL product.” Meanwhile, one retailer targeted by a letter now says the story turned out to be the best thing ever for my business.”