Trademark Nation: Who Dat Who Own Who Dat?
Had Saints followers chanted, “Who are Those that Claim They can Defeat The Saints, Who’re These?” then perhaps the NFL wouldn’t have discovered itself in a trademark dispute last week, however as a substitute the fans chanted, “Who Dat Who Say Dey Beat Dem Saints, Who Dat, Who Dat”, and there you’re.
The origins of Who Dat? are lost within the misty recesses of jargon, however some trace the cheer again to a Louisiana high school group. By 1983 Aaron Neville had recorded a model for the Saints, then referred to because the Aints. The Saints, by the best way, received their title from the gospel song, which bought the title from Catholicism.
Now the Saints are going to the Tremendous Bowl Governor Jindal proclaimed this week Who Dat Nation Week, and Who Dat t-shirts are flying off the shelves in New Orleans in addition to in Florida, the place the massive Game shall be performed.
The NFL, in its capacity as agent for the member teams, despatched out stop and desist letters in both locales, asserting possession by the Saints of, among other trademarks, Who Dat.
Mistake. Seemingly every elected official in New Orleans defended the shirt sellers culminating with Sen. David Vitter (R-La.) (yes, that Senator Vitter) who wrote the NFL to point that he was printing up his own “Who Dat say we won’t print WHO Dat” shirts.
Apply pointer: attempt to keep away from situations where an alleged patron of prostitutes can take a holier-than-thou stance with regard to your consumer.
So these terms that float in the ether: who owns dem?
That the fans coined it inflames the difficulty but does not determine it. Clients in all probability coined the abbreviations Coke, Bud and Huffpo. No one could make an excellent equitable argument that IBM cannot forestall third occasion use of Massive Blue, or VW of Bug, or McDonalds of Mickey D’S.
That the identify describes the fans, not the product, is what complicates things. There are the Crimson Sox Nation, Cheeseheads (Packers), twelfth Man (for Texas A&M, or the Seahawks, relying who you ask), and the Bleacher Bums of Chicago. An example of European sophistication: Gooners for fans of the Arsenal Gunners. And names for locations where exhausting core fans are discovered — the Dawg Pound (Browns), Death Valley (Clemson), and the Black Gap (Raiders).
As an aside, it appears, in soccer the Extremely fans display Tifos in their Curva of the stadium, but I am only learning to speak soccer and can’t explain what that means.
Fan names are landmines for trademark owners. They cannot stop (and do not need to stop) somebody from saying that they are a Legomaniac or a Trekkie or a part of the Red Sox Nation. It’s the merchandise bearing the identify that’s the issue.
Now, it would not appear terribly unjust that Lego can cease the usage of Legomaniac, or that Viacom can stop use of Trekkie, in a context where some prospects might mistakenly imagine that some restaurant, or website. or product, is endorsed by Lego or Viacom, when it’s not. However trademark house owners are in bind, knowing that this might be seen as a violation of a rule of fine branding: “Do not sue your greatest prospects.”
A pre-emptive methodology is to align itself with the followers. Texas A&M has an enormous check in its stadium: “Home of the twelfth Man.” When it protested the Seahawks use of the phrase, it was seen to be performing in the interests of its loyal followers.
Not so for Arsenal. Because of lengthy-time period use by fans on, for example, fanzines named The Gooner, when Arsenal utilized for the mark, the press had predictable headlines (“Gooners fuming over attempt to trademark name”), predictable rationales for anger (“the word was invented by the fans, not the club”) and predictable predictions (“Arsenal are in hazard of alienating the very individuals they needs to be nurturing”). No ultimate consequence on that yet.
So we return to New Orleans. Who Dat is within the air, Governor Jindal proclaims ‘Who Dat Nation’ week, and so on.
The NFL, as policing agent for the Saints, sends the demand letters to local companies. And that may nicely have sealed its fate. The issue is framed: the interloper claims possession of a piece of local tradition (as opposed to ‘local enterprise seeks to protect its property’).
I’d submit that no Louisiana politician would have sent a strongly worded letter to the new Orleans Saints this week.
Whether the Saints had protectable rights in Who Dat is a discussion for another day. The NFL has now indicated that it’s going to solely protest the usage of Who Dat when made in reference to the infringing use of another trademark of the Saints or the NFL. However the optics lesson is clear. The group must be seen as defending the rights of the followers, not as an appropriator of the fruits of the fans’ ardour. Treat the fans as a twelfth Man.