Sports

Who Dat Say Dey Gonna Sue My Shop?

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Songwriters cleverly avoid an NFL trademark suit with the old "the NFL hasn't been created yet" loophole.

A legal angle on the Super Bowl: The National Football League has claimed ownership of the phrase "Who Dat." The New Orleans Times-Picayune reports:

In letters sent to Fleurty Girl and Storyville, the NFL ordered the retailers to stop selling a host of merchandise that it says violates state and federal trademarks held by the New Orleans Saints.

Among the long list of things the NFL says is off-limits without a licensing agreement are some obvious violations like the official logo of the Saints and the team's name. But the one that stands out is "Who Dat."

Who knew?

The NFL, noting a 1988 trademark the Saints registered with the Louisiana secretary of state, says it has exclusive rights to the phrase and demands that the retailers stop selling it.

In theory, trademarks exist to prevent customer confusion. But a customer must be mighty confused indeed to believe the words "Who Dat" appear only on official Saints merchandise, no matter what went on in the Louisiana secretary of state's office two decades ago. For one thing, someone else registered the trademark in 1983, though he appears to have let it lapse. More importantly, the phrase has been a part of New Orleans life for far longer than that, including decades of use as a high school football chant. "Before it became a rallying cry of fans of the New Orleans Saints," the paper notes, "Who Dat was used as a cheer by St. Augustine High School. And before that it was perhaps first heard in minstrel shows in the later 1800s." The phrase's pop culture roots date at least as far back as Paul Laurence Dunbar and Will Marion Cook's song "Who Dat Say Chicken In This Crowd," published in 1898. That's 22 years before the NFL even existed. (Meanwhile the Bengals have been using the similar "Who Dey?" chant since the early 1980s.)

This case is absurd enough to have inspired some political pushback, with Sen. David Vitter (R-La.) writing the NFL to ask it to back off. The league replied that it doesn't want to control all uses of the phrase "Who Dat," just those related to professional football. What it hasn't done is established why it should have even that right. The fans didn't grab this chant from the team and start using it in unauthorized ways. The fans brought it to the field, and now the franchise thinks it should have the right to control those fans' speech.

Bonus listening: G.K. Darby has assembled a set of songs for the Super Bowl, including several variations on "Who Dat?" From 1983, here's Aaron Neville with "the Singing Saints":

…and here's a hip hop take from K. Gates:

Update: The NFL has backed down. As Ed says in the comment thread, they "realized the gun is pointed at their own feet."

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  1. I live in altlanta in 1979-80…family had season tickets to the falcons. I remember one game the sians were in town and my dad kinda liked their chant…I remember thinking, i guess that is kinda how black people talk…is that why they are saying it? is that racist? i have two or three black friends.

    1. Not anymore.

      1. they don’t read this webpage

        1. damn..I always wondered how gabe knew I like chicken

          http://www.youtube.com/watch?v=uCbD9o948ec

        2. Too diverse for them?

        3. they don’t read this webpage

          FIFY

    2. I had falcons season tickets for a few years and I never understood the pimps with umbrellas thing. Has the NFL trademarked that too?

  2. i would love to see a remake of that video with obmam and rahm emanuel in headphones doing the “who dat!”

  3. The NFL is REALLY obnoxious about this kind of stuff. They have a lot and embarrassing history of stomping legitimate speech.

  4. Boojang hardest hit.

  5. We own the patent to fried chicken…we will prosecute you

    1. I better hide the gen-mod watermelon before you get here too.

  6. I anxiously await Rev Sharpton’s criticism of the NFL for claiming ownership of what is obviously a racist attempt to castigate the negro dialect. The black culture is a product of centuries of subjugation and hatred from whites and isn’t something for the NFL to ridicule in this manner. It is bad enough that the NFL has made billions of dollars on the backs of black athletes, now they want to co-opt a part of the african american cultural heritage for finacial gain. Disgusting.

    1. Gotta check with that guy from Nevada on a Negro dialect ruling.

    2. “The black culture is a product of centuries of subjugation and hatred from whites and isn’t something for the NFL to ridicule in this manner Madison Avenue.

      FIFY

  7. I recall the Bengals fans pretty much just ripping off the Saints fans. They didn’t even offer an Ickey Shuffle in return.

  8. I am disgusted by the vast amounts of hate speeach that occurs here. You guys really think it is funny to make of blacks for speaking that way?

    1. agreed, you guys know that it makes you all look like racists when a few bad apples are making fun of the way blacks speak. You should step up and shout down the racists among you.

      1. I wanna cut his balls off.

    2. Oh that’s rich. Novelty is the ONLY reason they speak in a dialect. We know this because as soon as the dominant culture adopts word from black dialect, blacks drop them and replace them with new, novel words. Also, if they didn’t want the dominant culture to adopt their novel words (and believe me they do, as it validates their existence) they wouldn’t talk so motherfucking loud.

      1. Is “Motherfucker” one of them? That one is not quite as loud as “bitch” in lots of places.

        1. At one time, yes. But now it’s universal.

  9. I don’t see why you guys are against property rights. Do you think I should be able to come over to your house and take your dinner table home? If we didn’t have these rules then our culture would freeze….how would we reward the innovators?

    1. If you purchase the food, prepare it, then bring it over to my house, serve it, then eat with me, I really can’t argue when you take the leftovers home.

    2. IP Law only benefits IP Lawyers and paralegals.

    3. Last time I checked, trademarks aren’t property. They can’t even be sold on their own. You should know that.

      1. You can sell a federal trademark. You can assign the rights over to someone else. The catch with trademarks is that they have to be used in commerce or you lose the rights.

        1. Yes, but isn’t it that they have to be sold as part of a sale of an underlying asset, not as mere goodwill?

          Or are you referring to licensing the TM? In that case, the use of the mark has to be overseen by the owner.

          1. No, with both patents and trademarks you can out right sell the rights. Trademarks are just more difficult because the person or entity you are assigning the rights over to has to also be using the mark in commerce.

            1. Let me give an example. Let’s say that a guy has a grocery store in Hawaii called ‘Groovy Grocceries’ and obtains a Federal Trademark for the mark ‘Groovy Groceries’. Even though he has a Federal Trademark, he still only has a monopoly on ‘Groovy Groceries’ in Hawaii do to not having a Groovy Groceries grocery store in any other state, just in Hawaii. And let’s also say that he does not do internet sales. So someone else could start up a ‘Groovy Groceries’ in Kentucky and not infringe on his Federal Trademark (as long as the owner of the Kentucky store does not do sales in Hawaii). The owner of the ‘Groovy Groceries’ in Kentucky could buy the Federal Trademark from the Hawaii guy by having the Hawaii guy assign the Federal Trademark over to the Kentucky guy.

              1. Yes, but the Hawaii guy still has priority over the Georgia guy and can displace the Georgia should he move into the local market. Wouldn’t an assignment have to be an agreement not to compete in Georgia as Groovy Groceries?

                1. No, because the Hawaii is already established in Hawaii. Even with the federal trademark, the Kentucky guy can’t get into Hawaii because the Hawaii guy was there before the Federal Trademark was established. Now let’s say the Hawaii guy wanted to keep the Federal Trademark and expand into Kentucky, then it would depend on when the Federal Trademark was established. If he got the mark before the Kentucky store was opened, then the Kentucky guy would have to change the name of his store, but if he got the Federal Trademark after the Kentucky guy opened his store, then he can’t expand into Kentucky. Trademark law is based on common law. You don’t even need to get a state or Federal Trademark to claim a trademark. Anyone can claim one, it is the difference between ? and ?. Anyone can claim a trademark by placing ? after what they are claiming. People who have a Federal Registered Trademark can place a ? after what they are claiming. Federal Trademarks are very useful. You not only scare people away from using your mark, but you also have a way of claiming a mark in all 50 states without having to engage in commerce in all of them.

                  1. Even if you have a Federal Trademark, if someone was established locally before you obtained the Federal Trademark, you can’t expand into that state(well you could, you are just opening yourself up to a lawsuit).

  10. My first grader is currently wearing an officially unlicensed Who Dat shirt. Black on gold with no logo or Saints on it. Nothing but Who Dat Nation. Not bad for twelve dollars. I have also noticed many tag along businesses referring to the “Black and Gold” to avoid the wrath of the NFL trademark police.

    1. James,
      And you support this theft? what kind of lesson are you teaching your children? You should go to jail.

      1. No, only people who want to reward thugs like the NFL. Just what is the “innovation” that the No Fun League effected?

        Property rights? Well, I do not need to have one dime of my property confiscated in order to finance the state’s monopoly on the administration of justice-a phenomenon that does not exactly enhance the cause of recognizing, championing and protecting property rights.

        People will innovate whether or not there is a copyright/patent protection racket.

        1. Based on the hyperbole, I’m guessing the IP lawyer is being sarcastic.

          1. And his email is kind of a giveaway.

  11. Did the NFL ever get ownership of “Luv Ya Blue”?

    1. They may, but they will never own Oail Andrew Phillips. Bummer for the NFL.

  12. Do paper bag makers have to pay royalties?

    1. Heh. Yeah, and do they have a trademark on the name “Aints”?

  13. I like the fact that the NFL also claims title to the Saints logo, which is just the Fleur de Lis. It evidently dates back to at least the 12th century, a couple of days before the NFL started. How much longer until they claim ownership of the sun?

  14. How much longer until they claim ownership of the sun?

    That’s Phoenix’s property.

    1. We own ALL the suns.

      1. Not once Mr. Burns takes it away.

  15. Oh, and I’m about sick of hearing about the “big game” thanks to the crotchety protection of the stupidist game name ever: Super Bowl roman numeral, give me a break.

    1. They tried to claim “The Big Game” a few years back but dropped it after getting push back from Cal and Stanfurd who have been playing the Big Game for over a 100 years.

  16. All your cheer are belong to us!

  17. Paul Laurence Dunbar, by the way, was one of the first popular black American poets. Where did he live? Dayton. (He went to high school with the Wright Brothers.)
    Who do they root for in Dayton?
    That’s right. The Cincinnati Bengals.
    Who dat/dey?
    I’m just sayin’.

  18. In case any of you kids are looking for a Black History Month research topic, Dunbar was an interesting dude.

    1. My Black History research topic is up a little. The menu from the MSNBC cafeteria.

  19. I looked at the federal trademark registration database–lots of “Who Dat” filings (I didn’t review to see if their status), and I don’t think they’re the NFL’s. Asserting rights you don’t have can be actionable. If that’s the case, I’d threaten disciplinary action against the NFL’s counsel, too.

    1. Paddling and humiliation are on an earlier thread.

    2. It’s probably under the Saint’s ownership group, not the NFL.

  20. If I were the Pope, I’d go after everybody who says “God damn it” for royalties.

    1. I go after the gay men dressed as nuns in gay pride parades cliche’.

  21. “Among the long list of things the NFL says is off-limits without a licensing agreement are some obvious violations like the official logo of the Saints…”

    Who dat gonna copy rite that fleurs-de-lis?

    Seriously, if they didn’t want people profiting from their logo, maybe they shouldn’t have chosen a logo that’s been in continuous use since the 12th century.

    http://en.wikipedia.org/wiki/Fleur-de-lis#King_Clovis_I

    In fact, didn’t they choose that logo because it already had a preexisting association in their market that they wanted to tap into?

    Think about it. Think about it…

    The correct answer is “yes”.

  22. The NFL already backed off. Not saying they were in the right or that they’re not asshats, but they’ve already realized the gun is pointed at their own feet.

    http://www.usatoday.com/sports…..pute_N.htm

  23. didn’t they choose that logo because it already had a preexisting association in their market that they wanted to tap into?

    Wait a minnit! That would be *gasp* predatory!

  24. I am not being sacrastic. IP law is the foundation of modern civilization and much more important than paleo-caveman property rights. That is why republicans and democrats are more protective of IP than mere physical property rights. If your kid is wearing a unlicensed shirt he and you both belong in jail.

    1. IP law is a major obstacle to innovation. It may have served a purpose, but has been superseded by technology. The only thing IP law does these days is produce some of the most arrogant lawyers in the land. And since IP lawyers usually make terrible business decisions for their clients (that seem to benefit the lawyers!), IP law and IP lawyers are a net drag on society.

      1. It may have served a purpose, but has been superseded by technology.

        IP law has not always been the absolute mess that it is today thanks to Mickey Mouse. Sane IP law — say, the 20 year term copyright laws that originally existed in the US — is far better for innovation than no IP at all.

        1. Doesn’t mean it doesn’t violate the NAP.

          1. The use of force in response to trespassing on private property also violates the NAP — but we make an exception for it because the owner’s exclusive use of private property is a good and beneficial thing for society as a whole. The same is true for IP, though it makes sense in this case to severely limit the time during which IP exclusivity holds.

            1. Hasn’t the trespasser initiated aggression?

    2. This is obviously a parody, but the fact that IP holders sometimes claim privileges the law doesn’t give them — or claim they hold IP that they really don’t — doesn’t mean the concept of IP itself is a bad thing. Heck, plenty of ordinary property owners do this with ordinary property.

    3. Surely you jest! Even the freaking NFL realizes it hasn’t a chance protecting Who Dat. What the fuck are law schools putting out these days?

        1. Unemployed document reviewers.

    4. The purpose for copy right laws is to benefit the public. The thinking was that if you provided the incentive of locking up IP rights you would get more cool things from innovative people.

      The problem today is that corporations and artists feel that the primary purpose of copy right laws is to benefit them.

      IP laws are way overdue for an overhaul.

  25. If we let this stuff slip it will soon be anarchy? If that is what you want then why aren’t you living in Somalia libertymike?

    1. Well, for one, I hear that one might have a hard time finding restaurants that offer super size portions.

  26. The NFL is about gambling, merchandising and football, in that order. They’re strong-arm thugs who do the community service/altruist thing to keep in society’s good graces so they can extort a new stadium every few years. All the tripe about how the upcoming game has given New Orleans hope and togetherness and pride is both comical and cynical. Does anyone believe that if the Saints win, the city’s crime, corruption and crappy schools will disappear?

  27. NFL to New Orleans: Your possessions are now mine.

  28. Roger Goodell is going to be the end of the NFL. This is the same commissioner who had his legal lackeys threaten to sue an Indianapolis church that showed Super Bowl XLI at a church gathering, with testimonial videos at halftime from Dungy and Smith, because it “gave the appearance of NFL approval of their message”.

    All this trademark/copyright nonsense, together with pushing for each team to play a game in Europe or Japan every season, lengthening the regular season, and having the same logo for every Super Bowl starting next year, have totally cancelled out the good will he earned by cracking down on players’ off-field criminal activity.

    1. have totally cancelled out the good will he earned by cracking down on players’ off-field criminal activity.

      Tulpa, you sly dog – this got a chuckle.

      Since when have Michael Vick’s employer’s cracked down on off-field criminal activity?

      1. I seem to recall him being suspended and having his multimillion dollar contract voided (not to mention the fact that he did two years in Club Fed). What did you expect the NFL to do, ban him for life?

        1. It was just a ploy by anti-property rights forces to give dog fighting a bad name. Looks like you fell for it.

          1. In my view, animals are somewhere between inanimate property and children on the rights scale. I refuse to subscribe to an ideology that sanctions animal torture.

            1. So you give them the green light to rule your relationship with your animal property and, without a hiccough, go straight to giving up your children?

              That’s just sick.

              1. Animals, though property, have a legal status distinct from inanimate property, just as children, though persons, have a legal status distinct from adult persons. If you don’t have a problem with the state forbidding a two-year-old from entering into a contract, you’ve already subscribed to a more nuanced view than a simple property vs. people outlook.

                1. Is it okay to kill a chickien by twisting it’s neck? Even if you think it’s cute and it’s your pet with a name?

                  1. Of course it is OK to do that, regardless of your personal feelings toward it or nomenclature. I’m not saying animals have a right to life, just a right not to have wanton pain and suffering inflicted upon them.

                2. The state does not forbit a two year old from entering into a contract. The state will not enforce that contract for either party. There is a difference.

                  By-the-way, you didn’t get your rights from the Constitution either.

                  1. A contract that is not enforceable is not a contract. If a state decided not to enforce contracts to which a woman is a party, that would be a violation of freedom of contract, even though women could still sign pieces of paper that said “Contract” on them.

  29. I skimmed through the comments but didn’t see what I was looking for so I’ll just post it myself.

    GO SAINTS!!!

    WWWWWWWWWWWWWWWOOOOOOOOOOOOOOOOOOOHHHHHHHHHHHHHHH!!!

    That is all. You may continue with your day.

    1. Oh yeah, gotta agree.

      1. Yeah you rught!

        1. right

          Damn it!

    2. They may go, but the odds of them beating the vastly superior Colts are small indeed. I think the critical difference is the defense, though everyone talks offense, offense, offense.

      1. PRO LIBBBBBBBBBBBBBBBB!!!!

        *shakes fist in air*

        I don’t need your pessimism, sir. Don’t make me post a pic of Tebow crying.

        1. The Manning will destroy your pathetic ‘Aints.

          1. Unless the Saints bring in Danny Wuerffel, who has never lost to Peyton. Not in college, not in the pros. It’s a nemesis thing.

  30. I’ll be watching ABC’s new hit comedy Cougar Town. 9/8c!

    1. Did you know the first episode of Leave It To Beaver was not aired on TV? The censors said that Wally and Beaver being seen together in the bathroom (they were keeping a small aligator in the toilet tank) was just too suggestive. Suggestive of WHAT?

      Sick bastards.

    2. Wait. They made a show for people like me?

      1. You have an alligator fetish?

        1. Errrr. Sure. We are talking about another name for cougars right?

          1. I thought it was Florida football.

            1. That’s probably it. Ward was a UGA grad, maybe.

  31. Of course it is OK to do that, regardless of your personal feelings toward it or nomenclature. I’m not saying animals have a right to life, just a right not to have wanton pain and suffering inflicted upon them.

    Ah, so you would ban foie gras then? And how often is it, exactly, that you just make up “rights” out of thin air? Animals are property; torture is bad. That does not mean that torture of animals should illegal. It makes no sense to say “yeah, we can kill you for our own convenience, just not painfully”.

    Dumb. Inconsistent. Imaginary. call it what you will. you’re on an intellectual downslide, that’s for sure.

  32. @bestpriceforsales equus 3100 I had a BMW, and if anyone has had one you know that a constant problem is the appearance of the check engine light or service engine soon. Hopefully generic in all instances.

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