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.
I am pretty sure the NFL is making a money grubbing club of billionaire serial extortionists. They are attempting to take of every to take over every penny of the national economy.
This latest effort is an attempt to monopolize a historic event by purposely confusing the issue. IF they had a specific objection they should have stated it clearly but chose not to. They chose to make a vague, expansive and intimidating statement. Not to mention that if it were their trade mark they have a duty to defend it. Many people have been using these symbols loudly and pubicaly in this way for years, if it were a trademark they are too late to enforce it.
With regard to the fleur-de-lis it has been a symbol of the French Monarchy since at least the 12th century and a symbol of Louisiana and New Orleans since its founding. The Saints used our symbol and now want to charge people for their appropriation of our own symbol.
History lesson about the FDL aside, it’s not the point. The point is Lions, Patriots and Forty-Niners also existed long before the NFL but once a team depicts them in a certain style, that style then becomes owned by the NFL.
So Google image search for FDL turns up these…
http://images.google.com/images?q=fleur%20de%20lis&oe=utf-8&rls=org.mozilla:en-US:official&client=firefox-a&um=1&ie=UTF-8&sa=N&hl=en&tab=wi
For Saints logo turns up these…
http://images.google.com/images?hl=en&safe=off&client=firefox-a&rls=org.mozilla%3Aen-US%3Aofficial&um=1&sa=1&q=saints+logo&aq=f&oq=&aqi=g7g-m3&start=0&social=false
So there is a distinction.
But the question is “Who Dat” and I haven’t seen where the NFL is exercising any copyright claim on the phrase independent of it’s use with FDLs and the colors black and gold.
Now David Vitter is jumping in to exploit the situation and the whole thing has just jumped the shark.
You cannot copyright a color or a phrase. Copyright protection is automatic at time of creation, does not need to be registered and does not need to be asserted/enforced for protection to remain in place – this comment is copyrighted, for instance, as is your blog post.
Any particular artwork related to the logo would be protected by copyright, but each individual artwork would be copyrighted. Using a book character in a work of your own would be a copyright issue. Drawing the Saints logo yourself in the same style is not a copyright violation, but it would be a trademark issue.
This is a trademark/word mark issue. Trademarks do NOT have to be registered and they do have to be used and enforced to be protected from infringement. If a trademark is not used or enforced, public usage can cause it to me no longer accepted as a trademark.
They asserted the who dat phrase as a trademark after it was already in common use. That is not unheard of – cf. Microsoft Windows. However, that does not stop people in other business or other sports calling their team the Saints (the Southampton football club in England has been known as the Saints for many more years).
Unfortunately, because the phrase was in common use prior to their claim, it severely weakens their claim to “own” it.
The Saints’ Fleur is a trademark, as is their overall color scheme combined with their logos. However, that only applies within their business domain. It is difficult to see that they can assert trademark infringement over all black and gold clothing which includes a fleur.
I think they would need to convince a jury that the black and gold clothes with the FDL closely enough resembled their product.
But (as I understand it) they aren’t trying to own the “who dat” phrase outright, only its use with FDLs and Saints colors, the whole package. But it is getting hysterical now and people are acting as if folks can’t even SAY Who Dat. Then it gets used as a political tool.
The t-shirt shops need to talk to their lawyers, see if the case is a winnable and if they are in the right, proceed. I am pulling for them. I hope the NFL relents. If they don’t, I am sure many more t-shirts can be sold as a result of all the shenanigans. Like maybe “no fun league” shirts. Just don’t use stars or red, white and blue.
But it’s a little weird out there right now. Perhaps it’s good so the team can get away from that “happy to be here” notion about the Super Bowl.
varg , thanks for putting my thoughts on this matter into a readable and cognizant way.
i would also like to thank the nfl for telling benson there was no way he was gonna pull out after katrina.
that bet seems to have paid off.
im no fan of big biz as i have allways worked for small mom and pop joints.
that being said i am also no fan of bashing just for the sake of bashing.
great post my friend.
looks like you were on the money.
http://www.nola.com/saints/index.ssf/2010/01/who_dat_nation_1_nfl_0.html
vitty looks like a hero ,that sucks.
The NFL may or may not own a specific Fleur de Lis style, and/or use of the phrase if they can prove trademark. However, based on the picture I found of the Fleurty Girl T-shirt that led to the cease and desist order, the NFL is going FAR beyond anything they might possibly own.
http://abcnews.go.com/Sports/wirestory?id=9701026&page=2
If you do a search for black+gold+fleur+de+lis the first Saints logo you get is only the 29th hit. Unless it’s an exact knockoff of the Saints logo I’m not sure even a generic black and gold fleur de lis associated is something you can trademark outside of very narrow direct knockoffs of the Saints/NFL logo.
http://bit.ly/bzIQBe
Fleurs de lis have been around for 1500 years. ‘Who Dat’ is older than the game of American football. I don’t know trademark law but it doesn’t seem like the NFL or the Saints have a strong case.