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Trademark Nation: Who Dat Who Own Who Dat?

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Had Saints fans chanted, "Who Are Those Who Claim They Can Defeat The Saints, Who Are Those?" then perhaps the NFL would not have found itself in a trademark dispute last week, but instead the fans chanted, "Who Dat Who Say Dey Beat Dem Saints, Who Dat, Who Dat", and there you are.

The origins of Who Dat? are lost in the misty recesses of jargon, but some trace the cheer back to a Louisiana high school team. By 1983 Aaron Neville had recorded a version for the Saints, then referred to as the Aints. The Saints, by the way, got their name from the gospel song, which got the name from Catholicism.

Now the Saints are going to the Super Bowl®. Governor Jindal proclaimed this week Who Dat Nation Week, and Who Dat t-shirts are flying off the shelves in New Orleans as well as in Florida, where the Big Game® will be played.

The NFL, in its capacity as agent for the member teams, sent out cease and desist letters in both locales, asserting ownership by the Saints of, among other trademarks, Who Dat.

Mistake. Seemingly every elected official in New Orleans defended the shirt sellers culminating with Sen. David Vitter (R-La.) (yes, that Senator Vitter) who wrote the NFL to indicate that he was printing up his own "Who Dat say we can't print WHO Dat" shirts.

Practice pointer: try to avoid situations where an alleged patron of prostitutes can take a holier-than-thou stance with regard to your client.

So these terms that float in the ether: who owns dem?

That the fans coined it inflames the issue but doesn't determine it. Customers probably coined the abbreviations Coke, Bud and Huffpo. No one can make a good equitable argument that IBM can't prevent third party use of Big Blue, or VW of Bug, or McDonalds of Mickey D'S.

That the name describes the fans, not the product, is what complicates things. There are the Red Sox Nation, Cheeseheads (Packers), 12th Man (for Texas A&M, or the Seahawks, depending who you ask), and the Bleacher Bums of Chicago. An example of European sophistication: Gooners for fans of the Arsenal Gunners. And names for places where hard core fans are found -- the Dawg Pound (Browns), Death Valley (Clemson), and the Black Hole (Raiders).

As an aside, it seems, in soccer the Ultra fans display Tifos in their Curva of the stadium, but I'm only learning to speak soccer and can't explain what that means.

Fan names are landmines for trademark owners. They can't stop (and don't want to stop) someone from saying that they're a Legomaniac or a Trekkie or part of the Red Sox Nation. It's the merchandise bearing the name that's the problem.

Now, it doesn't seem terribly unjust that Lego can stop the use of Legomaniac, or that Viacom can stop use of Trekkie, in a context where some customers may mistakenly believe that some restaurant, or website. or product, is endorsed by Lego or Viacom, when it's not. But trademark owners are in bind, knowing that this could be seen as a violation of a rule of good branding: "Don't sue your best customers."

A pre-emptive method is to align itself with the fans. Texas A&M has a huge sign in its stadium: "Home of the 12th Man." When it protested the Seahawks use of the phrase, it was seen to be acting in the interests of its loyal fans.

Not so for Arsenal. Because of long-term use by fans on, for example, fanzines named The Gooner, when Arsenal applied for the mark, the press had predictable headlines ("Gooners fuming over attempt to trademark name"), predictable rationales for anger ("the word was invented by the fans, not the club") and predictable predictions ("Arsenal are in danger of alienating the very people they should be nurturing"). No final outcome on that yet.

So we return to New Orleans. Who Dat is in the air, Governor Jindal proclaims 'Who Dat Nation' week, and so on.

The NFL, as policing agent for the Saints, sends the demand letters to local businesses. And that might well have sealed its fate. The issue is framed: the interloper claims ownership of a piece of local culture (as opposed to 'local business seeks to protect its property').

I would submit that no Louisiana politician would have sent a strongly worded letter to the New Orleans Saints this week.

Whether the Saints had protectable rights in Who Dat is a discussion for another day. The NFL has now indicated that it will only protest the use of Who Dat when made in connection with the infringing use of another trademark of the Saints or the NFL. But the optics lesson is clear. The team has to be seen as protecting the rights of the fans, not as an appropriator of the fruits of the fans' passion. Treat the fans as a 12th Man.

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