Who Dat? The NFL and Trademarks

By Dave Rein

Whether you were looking for false advertising claims on the Super Bowl commercials, roving the streets of Miami looking for counterfeit merchandise or just enjoying the game, the Super Bowl had a little something for everyone.  

The NFL even threw those who have a special interest in trademarks a big meaty bone to chew on when the NFL claimed trademark rights in the chant:  "Who Dat?"  

The origins of "Who Dat" are not entirely clear, but it certainly has been used for many years and most recently by New Orleans Saints fans who chant:  "Who dat? Who dat? Who dat say dey gunna beat them Saints?" 

A furor immediately broke out when the NFL sent cease and desist letters to T-shirt shops in New Orleans selling merchandise with "Who Dat" on them.  Days before the Super Bowl, the NFL appeared to change its position when it claimed that it would only pursue those who use "Who Dat" in connection with other Saints trademarks.

But, there are plenty of others besides the NFL who claim to own a trademark in "Who Dat".  A search at the United States Trademark Office shows applications for "Who Dat" for pretty much any kind of apparel that you can think of, action figures and variations of the mark including "Who Dat!!" for more apparel, "Who Dat? Blues Band" for entertainment and "Who Dat' Je Crois" for T-shirts.  For a store owner such as Lauren Thom, the NFL's announcement that it is no longer laying claim on "Who Dat" only provides some relief given the myriad of claims on the phrase.

I thought it was interesting to review the USPTO applications for "Who Dat", "Who Dat?" and "Who Dat!!" for apparel.  The only difference between the applications, of course, being that one has no punctuation mark and the others have either a question mark or two exclamation marks.  Likewise, other applications simply added "Je Crois" to "Who Dat".  While these applications may be of limited use to one defending against claims of trademark infringement, they do give attorneys who are untangling this web a lot to talk about. 

Regardless, the Saints and their fans had a lot to cheer about this weekend.  In the space of a few days, they not only beat the Indianapolis Colts to win the Super Bowl, but they also beat the NFL itself.  Who Dat!

Correction: the earlier post incorrectly referred to registrations instead of applications.