A fight is brewing in The Big Easy and it’s not looking good for the home team.

If you’re a fan of the NFL, you already know that the New Orleans Saints are playing in the big game next week. You might also know about the Who Dat nation of fans. What you might not know is that the NFL is claiming to own the phrase, “Who Dat”. They are sending cease-and-desist letters to printers across Louisiana ordering them to stop using it’s trademarks, which include:

The phrase, “Who Dat”

The colors black and gold

The Fleur de Lis

It seems that they are going after sellers that are using a combination of at least 2 of the above items. Even more at risk is if you are selling shirts with the “Who Dat” phrase on it within 50 miles of the Superdome, expect a letter.

Consider this:

The Fleur-de-lis has been a symbol of NoLa since it was occupied by the French.

Who Dat traces its origins to minstrel shows of the late 1800’s

Black and Gold is, well, Black and Gold.

The New Orleans Saints has been around since 1969

It’s obvious that the reason we see these letters going out is because the team is winning and the potential for apparel sales is skyrocketing, I can’t blame the NFL for wanting to protect it’s financial interests and discourage imitatators, but does that give them the right to try to take out anyone that uses elements of what they consider a trademark, even if you can show that those elements were used before the team was popular, or even in existence? Can you claim colors and already popular elements as a trademark simply because you are currently the most popular entity using them?

I’m not a trademark attorney, so I’ll have to let the courts decide that one.

It’s common in the shirt-o-sphere to find a design that skirts the line between using “original” and “borrowed” elements. Most designs tend to be a derivative of some other design somewhere and when I look at a shirt, I find myself thinking, “Oh, so and so did that already.” Does that give so and so the right to stop the next person from incorporating the same elements into their designs?

Not necessarily

With the volume of artists out there, it’s hard to be original solely on the merits of the elements of a design, some of which may contain common items. You have to add your own personal touches that usually include colors, image tweaks, and even placements. Once certain nuances become recognized, that becomes the identity of that artist and any specific derivations should be discouraged. We’ve all seen designs with wings on them. Imagine if a Mega Retailer sent letters to all designers that use wings in their designs ordering them to cease-and desist on the basis that they were the most popular seller and had the right to protect their interests.

The NFL has a right to stop sellers selling apparel using specific combinations that compete with what the league is selling, but trying to stop a 120+ year old phrase?

Who Dat!

wwltv via Deadspin

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