Expert Talks About NFL’s Decision To Back Down From “Who Dat”

The National Football League earlier this week backed off from its threat to sue vendors who sold T-shirts containing the phrase “Who Dat,” citing trademark infringement.

New Orleans Saints fans have used the “Who Dat” phrase as a rally cry for years. It’s a shortened version of “Who dat say dey gonna beat dem Saints?” The Saints’ fans are even referred to as Who Dat Nation. And with the once-mocked organization making its first-ever appearance in the Super Bowl, various T-shirt designs with the “Who Dat” phrase have been in high demand.

The NFL initially took issue with the phrase being included on T-shirts along with the use of black and gold colors (which the Saints use) and/or the fleur-de-lis. But days before the New Orleans Saints play the Indianapolis Colts in Super Bowl XLIV on Sunday in Miami, the NFL (referred to by some as the “No Fun League”) backed off, or clarified, its stance.

League spokesman Brian McCarthy was quoted in a USA Today story as saying the league “emphasized that people can use ‘Who Dat’ all they want if it doesn’t include NFL and Saints trademarks. We explained that we would contact merchants only if a ‘Who Dat’ item also contained NFL or Saints trademarks or if it is falsely claimed that an unauthorized item is affiliated with the Saints or NFL.”

Fitness Information Technology contacted Dr. John Grady to get his thoughts on the NFL’s position. Grady is an assistant professor at the University of South Carolina who specializes in intellectual property protection by professional and collegiate sport properties. Grady has published several articles on the subject in Sport Marketing Quarterly.

Q: What was your initial reaction when you heard that the NFL was sending letters to vendors telling them to stop selling T-shirts that included the “Who Dat” phrase?

Grady: “The league has to be seen as taking a proactive stance in fulfilling its obligation to vigorously protect the league’s intellectual property from which it derives substantial revenues. However, sending out cease and desist letters seems like an over-zealous attempt to control fan content that may really backfire on the league in the court of public opinion.”

Q: You’ve written about this in SMQ, but where can a league like the NFL or an organization like the Saints draw the line regarding trademark infringement, specifically with regard to popular phrases, symbols, or the use of team colors?

Grady: “With trademarked logos, the league and its respective teams have very clear rights which they have every right to enforce.  When a slogan like “Who Dat” is used on merchandise, the legal rights become more tenuous, assuming the slogan is not owned by the team or any other person.

“However, the phrase is rarely used in isolation on plain merchandise, such as black and white lettering on a white T-shirt. The merchandise typically uses the team’s color scheme in some fashion, which may be subject to trademark protection depending on the legal precedent in that jurisdiction. 

“What becomes much more of a slam dunk, legally speaking, for the league is when a manufacturer uses the team’s trademarked logos in addition to well-recognized marks such as fleur-de-lis in the team’s colors. This scenario is much more likely to raise eyebrows in the league office as potentially infringing the team’s marks in multiple ways.”

Q: The NFL received a lot of bad press due to its initial stance in the “Who Dat” situation. In past years, the NFL has taken similar PR hits by trying to control the use of “the Big Game” as it related to the Super Bowl or prohibiting churches from hosting Super Bowl watch parties. Is the league’s perceived image of being overly aggressive in terms of controlling trademarks deserving, or is the NFL often justified in taking such stances?

Grady: “The NFL, much like the upcoming Olympics in Vancouver, finds themselves in sort of a Catch 22.  One on hand, they must please their official sponsors who pay handsomely for the right to use the league or property’s intellectual property as part of their sponsorship packages. If they did not take such a proactive stance, sponsors would perhaps be unwilling to renew their sponsorship arrangements, citing the failure of the league to deliver category exclusivity that they were contractually obligated to provide.

“At the same time, they must make the event accessible to every day fans in addition to the corporate hospitality folks who often fill most of the seats at mega sports events. Therefore, it seems a little ridiculous for the NFL and others to be overly aggressive in trying to stop fans from trying to access their event, such as having a viewing party at a church. 

“For example, the phrase “the Big Game” is on every other commercial I’ve seen the past week, from sports bars to electronics stores selling HD TVs.  Clearly, if the NFL had hoped to control the use of that phrase, they missed their chance.  It has become almost a generic shorthand for the Super Bowl, and therefore unlikely to now qualify for trademark protection.”

Q: Finally, who will you be cheering for in the Super Bowl, the Saints or Colts?

Grady: “Having lived near the Gulf Coast for almost eight years and with family still living in Louisiana, I’ll go Saints.”