— Karen Brennan, Attorney
In light of the recent Super Bowl victory by the New Orleans Saints, I think a brief discussion of the recent squabble over ownership of the phrase “who dat” is in order.
In case you have not been following the story, the phrase “who dat” is commonly used by football fans and, in particular, New Orleans Saints fans. With the success of the Saints this year, “who dat” merchandise has been popping up for sale which has led to a battle over rights in the phrase. There are generally three opinions as to ownership of the phrase: (1) the NFL believes they own it; (2) Who Dat Inc. believe they own it; and (3) Saints fans (and merchandise retailers) believe no one owns it.
According to Wikipedia, the chant originated in minstrel shows and vaudeville in the 1800’s and was later adopted by jazz and big band performers in the 1920’s and 30’s.
According to ESPN, Saints fans began using the phrase “who dat” (shortened from “who dat say dey gonna beat dem Saints”) as a cheer over 25 years ago. Other sources note the phrase has been used as a southern football chant since the early 1970’s. As such, the general feeling is that no one owns it or it belongs to the city and the people.
The NFL believes they own a trademark in the phrase or at least as used in connection with the Saints. Numerous t-shirt makers and retailers have received cease-and-desist letters from the NFL over use of the phrase on t-shirts and other Saints memorabilia claiming the unlicensed products lead fans to believe the Saints endorsed the products.
Finally, ESPN also notes that Who Dat Inc., a company run by two brothers who are long-time Saints fans, claim trademark rights in the phrase for “branded products.”
Interestingly, there are numerous trademark applications for the phrase filed with the Trademark Office in connection with clothing and related goods. However, no registrations have issued. In fact, many of the applications were filed within the last month. I have heard of bandwagon fans, but bandwagon trademarks claims?
So who, if anyone, owns the phrase “who dat?” Who knows, but I am sure it will continue to be an interesting fight.