If you’re contemplating wearing your favorite Saints T-shirt to a Super Bowl party, make sure there aren’t any NFL lawyers invited first.
That’s because the NFL has decided to commit the 21st century’s defining example of corporate shark-jumping by threatening to sue its fans. In this case, the NFL is sending cease and desist letters to some T-shirt makers who’ve used the phrase “Who Dat” to suggest support of the New Orleans Saints.
If you haven’t made it down to the Big Easy in the last few decades, you might not be familiar with the “Who Dat” chant, essentially an abbreviated version of the taunt, “Who dat say dey gonna beat dem Saints?” Of course, the NFL hasn’t bothered to pursue enforcement against T-shirt makers until recently, because for most of the Saints’ existence, the answer was: “Practically anybody.” But now that black and gold jerseys have found a market outside Nawlins, the NFL has shown up, a plastic crawfish bib tied around its neck, ready to tear off a bite of “Who Dat” and dunk it into its chicory coffee.
The NFL had very little to do with the evolution of “Who Dat.” It evolved, as many great sports traditions do, through the collective amusement of a fanbase so in love with its franchise that no amount of losing will tarnish their wholly unjustified pride. (I should disclose at this point that I’m a native of Cleveland, one of four cities with a franchise that has never appeared in a Super Bowl.)
While there’s no question that a company can use a phrase someone else has coined as a trademark, there’s also no question that the company has to, well, use the mark in trade — make some bona fide offering of goods or services in connection with the name — in order to claim some rights to the phrase. It can’t just show up some twenty years into the use of a phrase and decide it’s the Mayor of Who Dat Nation. So the NFL’s claim has been not that it owns “Who Dat” — it owns the use of “Who Dat” in connection with Saints logos and icons.
That sounds reasonable, except it fails to acknowledge that the NFL could stop people from using Saints logos and icons even without the “Who Dat” phrase. If the goal was to protect against unauthorized use of its legitimate logos, there was no reason to mention “Who Dat” at all.
My guess would be that the NFL will soften its stance on “Who Dat.” If not, who knows — the locals might turn from “Who Dat” to “Gris-Gris,” and you don’t want to mess with the gris-gris.