Super Bowl XLIV has come and gone, with the underdog New Orleans Saints snatching a surprise 31 to 17 victory over the Indianapolis Colts. With the Super Bowl over, there is no more NFL football until the next pre-season opener in July. So what is a die-hard fan to do now? Why not analyze one play of the National Football League's trademark defense leading up to the Big Game?
Licensing of professional sports trademarks is a multi-billion-dollar industry. The NFL oversees both the sport of professional football and the business of same, including management of the Intellectual Property of the league and its 32 teams. As clearinghouse for and protector of league trademarks, the NFL has taken the middle linebacker position and been very aggressive over the years, going to significant lengths to protect professional-football-related marks from infringement.
WHO DAT is a cheer New Orleans Saints fans cry at football games. Saints fans refer to themselves as "The Who Dat Nation." WHO DAT itself derives from the chant "Who dat say dey gonna beat dem Saints," which—with its Southern edge and New Orleans flavor—Saints fans have used to cheer on their team since its inception in the 1960s. WHO DAT, as shorthand for the cheer, has appeared on various apparel and other items over the years. With the success the Saints enjoyed during this most recent football season and leading up to the Super Bowl, WHO DAT items saturated the market.
With WHO DAT, the NFL brought a full-on blitz against a number of sellers of merchandise bearing that mark. Because of the association between WHO DAT and the NEW ORLEANS SAINTS trademark, which the NFL owns and licenses, the league asserted trademark rights in the WHO DAT term, claiming that any use, outside an official license, was an infringement. During the week before the Super Bowl, the NFL dispatched numerous cease-and-desist letters to businesses like souvenir and T-shirt shops as well as sporting-goods stores from Bourbon Street to Miami, alleging infringement of the WHO DAT mark.
Though its defense is usually quite successful, some very powerful players read the NFL's blitz and moved swiftly to stop it. WHO DAT is a term rooted in a team cheer which, in turn, has deep roots in Louisiana and New Orleans culture, with references to WHO DAT going back to the early 1900s. As such, according to NFL detractors, the league cannot claim sole ownership of WHO DAT. Response to the NFL came from Louisiana Senator David Vitter and Representative Charlie Melancon. WHO DAT, they asserted, is a piece of New Orleans culture and belongs to the people. Even Louisiana Governor Bobby Jindal instructed the Louisiana Attorney General to investigate potential litigation against the NFL for trying to usurp rights to WHO DAT.
With its attack thwarted, the NFL quickly huddled and only days before the Super Bowl clarified its position on WHO DAT, retracting most of its cease and desist demands. Rather than seeking to stop any use of WHO DAT, the NFL agreed it would only seek to cease use of that term when it appeared in connection with any other unlicensed NFL trademarks. In other words, the NFL would only seek to prevent sales of unlicensed merchandise and only where another NFL mark appeared in connection with WHO DAT.
In the end, New Orleans walked away with two victories in the Super Bowl. The Saints won the Lombardi Trophy and the people of New Orleans stopped a formidable defense. Though this may just have to tide football-trademark fans over until the NFL preseason next summer, pitchers and catchers report to Spring Training in only a few days. The return of baseball will certainly mark a welcome return of sports trademark and licensing activity to follow.
Vol. 53, June 2010