Last night one of my best friends left a hilarious message on my voice mail…  Because of my intellectual property (IP) background, she was calling to ask me for my take on the “Who Dat?” scandal between the people of New Orleans, LA and the National Football League (NFL).  In the message she dramatically threatened to paint her house black and gold (with fleur de lis, of course!).

The “Who Dat?” dispute has evoked some seriously passionate responses from the fan base in New Orleans and around the world!  I’m mad about it too – the saying is a part of Louisiana culture at this point and it cannot and should not be regulated.

Louisiana is the land of civil code, parishes, and drive through daiquiris. This is a state in which I was driving legally at 15 years old, and drinking legally at 18! We don’t conform without a fight.

Not just that, in the wake of tragedy, Louisiana needs to truly savor and revel in this good fortune…

So here are my thoughts (opinions!) on the matter:

The NFL has already lost.

New Orleans and Louisiana have already won.

The NFL probably doesn’t own the rights to “Who Dat?”

Read on for my reasoning…

The NFL has already lost.

It’s a miracle! The Saints are going to the Super Bowl!! But it didn’t happen overnight.  This team has been getting better and better over the years and the fan base has been getting bigger and more enthusiastic.

That means the overall NFL fan base has been growing with it.  New fans have joined the bandwagon and past fans have returned to the flock – fresh blood in the mix!  These fans have been watching more football and buying more merchandise.

So why?  Why would the NFL screw up a truly “Rudy” football moment – when the fans are warm and fuzzy, thankful and grateful, loving their team, the sport, and the NFL that makes it all possible?  Why ruin the Rudy moment by alienating an invigorated and enthusiastic fan base?

In the name of marketing/licensing dollars, the NFL has completely blown an opportunity to build untold goodwill with this fan base, uplift New Orleans, and boost its underlying economy.

Instead of nurturing this new fan/customer base, they alienated it by sending cease and desist letters to the local silk screeners, and “mom & pop” vendors.  When they could have promoted local businesses and created even more goodwill in the fan base, they dug in on the position of “owning” local slang that is part of the culture.

Such frivolous squandering of goodwill!  What half-cocked, stuffed shirt attorney did this?  My guess is that they have litigation attorneys managing their IP and their PR departments.  It’s just a thought…

My father used to use the term “false economy”.  He used it when he saw that we were using valuable, productive time trying to save a buck.  False economy happens when your short-term “gains” equal long-term losses…  So even if this dispute creates a stir now (more press coverage, etc…), alienating this fan/customer base is false economy in the long run!

I hope those “mom & pop” vendors are keeping track of the money they are losing by complying with the (bogus?) cease and desist letters.  That information may come in handy later.

New Orleans and Louisiana have already won.

Louisiana loves Saints football and the recent wins brought the state together with a sense pride and winning (finally, winning…).  However, this “Who Dat?” dispute has galvanized that sense of unity.  For the first time in a long time, Louisiana is truly bonding within its borders.

This dispute has created an “us against them” mindset that brings people together.  Nothing unifies the populous like having a common enemy.   It has even given Jindal an opportunity to do something almost endearing…

Hopefully this is a tipping point, the threshold at which Louisiana begins to take back its power and appreciate the enormous potential within its borders – like its natural resources – including gastronomy, culture, language, music, and art.  Maybe this is the point when Louisiana bands together and begins to take more pride in its uniqueness and beauty.

Who Dat gonna buy an NFL sanctioned, mass-produced, made in China “Who Dat?” shirt now?  Not me, and not New Orleans.  I think this is a fine time to showcase Louisiana creativity and artistry – make your own “Who Dat?” shirt!

The NFL probably doesn’t own the rights to “Who Dat?”

OK.  Caveat.  This is my off-the-cuff opinion after 5 years away from the active practice of law AND this is ONLY in regard to “Who Dat?”  They may have the IP rights on their particular version of the fleur de lis.

“Who Dat?” would likely fall under trademark law, not copyright.  As far as trademark goes, the only one I have seen was the Louisiana trademark registration.  At the risk of discounting the value of state trademarks, they don’t offer the same protection as federal and usually have pretty lenient standards.

The federal trademark process involves examination and research by trained trademark attorneys. There is a pending registration in the United States Patent and Trademark Office that was filed January 7, 2010 by “Who Dat?, Inc.” of Hammond, LA, but it has not yet been processed. They will turn down marks with more substance than this one – and I will watch this one closely to see if it ever reaches the principal register.

IF the NFL had a valid trademark (not likely, but let’s just play with the thought) a few things to consider might be…

The mark may be considered abandoned through non-use.  I don’t know who has been producing “Who Dat?” merchandise and actively using the mark for merchandising, however, if the NFL did not actively use it for a period of 2 or more years, it may be deemed abandoned and in the public domain.

The mark may be deemed abandoned through failure to enforce IP rights.  Failure to defend your trademark against infringement results in abandonment. NFL has had ample opportunity to crack down on infringers.

Certainly NFL knew (or should have known) of infringement before now. Every time the Saints play, the stands are full of non-NFL sanctioned shirts, hats, etc…  It has been in public view and on camera for a long time – so it’s a little too late claim infringement now.

That said…in 2001 I read a story about a gentleman named Uzi Nissan.  He has/had a small, local computer repair store in North Carolina.  He registered www.nissan.com in 1994 and in 2001 was sued by Nissan motors for “cyberquatting”.  He told Salon.com that the ordeal “ruined his business, ruined his marriage, and ruined his life”.  Click on the link above and find out all about it.

In other words, suing the NFL might be the way to go but it would be expensive!! Louisiana would be better off sending their very best negotiators in first to work this out with the NFL.

I don’t know what “winning” is in this instance.  I do know that it would include a good, working relationship with the NFL that leaves the populous of the State of Louisiana feeling as though their dignity and culture are intact enough to thoroughly relish this Super Bowl.  Geaux Saints!!!

Who Dat!!??