Note: I am trying to get ahold of a friend who is an intellectual property lawyer on this.
… I am not convinced the NFL is trying to claim ownership of the phrase “Who Dat” but they might be trying to enforce copyright as it relates to ‘Who Dat’ in black and gold coloring or with a fleur de lis. So purple Who Dats, pink Who Dats, red Who Dats, any other color Who Dats are fine but I think specifically black and gold Who Dats with fleur de lis resembling the Saints logo are a no no.
So I am not entirely convinced the NFL is claiming ownership of Who Dat and I am almost positive they aren’t claiming ownership of the fleur de lis as I have read. There is a specific style of fleur de lis the NFL has ownership of and that is the one that is exactly or closely depicted on the Saints helmet.
The story I have been trying to figure out today is if the NFL is sending cease and desist orders for the phrase “Who Dat” or orders related to the phrase “Who Dat” with black and gold coloring and fleur de lis.
If it is the phrase “Who Dat” as it stands alone. Then yes, release the hounds. If it is the latter, then I don’t think it is the NFL who are encroaching on the the t-shirts but the t-shirts who are encroaching on the NFL. It’s as if I wanted to make a soft drink and use red and white as my can design and in swirly letters wrote, “soda pop” on it. No one owns the phrase “soda pop” but if I use that phrase in a way that could be conceivably confused with Coke and selling a product similar to theirs (as in the case of gear and merchandise), I am encroaching on their trademark.
I think by the phrasing of their letter it is the potential for confusion they are on about…
From the NFL:
“Any unauthorized use of the Saints colors and other [marks] designed to create the illusion of an affiliation with the Saints is equally a violation of the Saints trademark rights because it allows a third party to ‘free ride’ by profiting from confusion of the team’s fans, who want to show support for the Saints.”
Now, is the NFL going after small potatoes by screwin’ with Magazine Street shops? Absolutely!
Should they know better than to disregard such small time operations until they become large enough to pose an actual threat because of the potential for bad press? Sure!
But I am not sure the NFL isn’t legally in the right here as it relates to the teams colors and logo which, when used together, do approach infringement.