Super Bowl weekend is here with the Saints and the Colts about to face off for the championship!  Parties are planned, chip and dip aisles are all but bare, and the beer is chilling.  Merchandising aficionados are in a frenzy as team apparel flies off the racks and into the hands of eager fans.  And the NFL has dispatched a massive cease and desist campaign . . . wait, what?

In the past several weeks, businesses offering Saints merchandise have received ominous missives ordering them to terminate the making and selling of any paraphernalia with the words “who dat” inscribed or depicted.  The NFL is sending these cease and desist letters to merchants of Saints apparel and memorabilia, demanding that any inventory with the words “who dat” be purged as well.  Claiming ownership of the phrase, a phrase that has purportedly been in existence since before the formation of the National Football League, is an interesting move by the NFL.  Especially considering the iconic nature of the phrase and the deep attachment felt by the natives and residents of Louisiana, and of New Orleans in particular.

Just for kicks, I looked at the USPTO database of registered trademarks to see what I could find in relation to “who dat.”  As it turns out, there are 18 registration records associated with those words, in some form or fashion.  9 of those 18 records are live registrations.  Interestingly enough, 4 of the 9 live registrations were filed in January of this year . . . not coincidentally I’m sure.   Among the 9 live registered trademarks including the words “who dat” are the following: 

WHO DAT SAY THEY GONNA BEAT ‘DEM SAINTS?®

WHO DAT!!®

WHO DAT?®

WHO DAT®

The first 3 listed above were among the 4 filed this past month.  And by the way, none of the trademark registrations were filed by the NFL.

Now, of course, a trademark doesn’t have to be registered to enjoy protection.  A trademark earns common law protection by being used in commerce, and retains that protection as long as the use continues and the mark is not abandoned.  While the NFL will likely argue this common law protection should extend on their behalf, it is a tough argument to win with a phrase having the history this one possesses.

The ensuing dispute will be fascinating and updates will be posted as new information develops.

Hat tip: Neil F. – my local Saints and LA expert.