Attorney: 'Who Dat' controversy is one for federal courts

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by Scott Satchfield / Eyewitness News

wwltv.com

Posted on January 29, 2010 at 10:52 PM

Updated Monday, Feb 1 at 7:11 PM

Who dat say ‘dey own a phrase?
 
It's a question t-shirt entrepreneur Lauren Thom, owner of Fleurty Girl Apparel, wants answered.
 
"We just don't know who owns ‘Who Dat,’ and that's the issue," Thom said.
 
Through a cease and desist letter, theNational Football League ordered Thom to stop printing shirts bearing the ‘Who Dat’ phrase.
 
After our story on the situation aired Wednesday, Thom says many New Orleanians have gotten involved.
 
"We've been steadily busy at the store,” Thom said.“The phone, you can hear it, just won't stop ringing, emails, even posts on our Facebook and Twitter, people just showing support."
 
NFL officials say they own trademark rights for ‘Who Dat’ through the state.
 
But Deborah Lodge, a Washington D.C.-based attorney who specializes in trademark cases, believes the situation would likely be decided by a federal judge.
 
"The biggest issue is whether the phrase 'Who Dat' functions as a trademark here, and in order to do that and win, the NFL would have to show that it is a brand, that it is a designation of source, that it means the Saints," Lodge said. "I did a quick look at this on the patent and trademark office website, and also I looked on the New Orleans and Louisiana websites, and I found many uses of 'Who Dat', and many claims of trademark rights. So, somebody will have to sort out who was first, and very importantly here, for what."
 
Saints officials wouldn't comment, but in an email, an NFL spokesman said, "If WHO DAT is used in a manner to refer to Saints football, we own trademark rights to it."
 
Many New Orleanians take exception to that, turning the situation into a ‘Who Dat’ controversy.
 
A little more than a week before coaching his team in the Super Bowl, Saints Head Coach Sean Payton even weighed Friday afternoon.
 
"I think the people who are running these small businesses, you know, I think we're fans of those people. You know, I don't think anyone can own ‘Who Dat’ personally," he said.
 
Lodge says it would be an interesting case for the courts.
 
"Everybody is going to be able to live together with this at some point. I doubt sincerely that the NFL will be able to wipe out all competing uses of 'Who Dat. Now, if it's used with the word 'The Saints,' or if it's used with another designation that points to the Saints, I think they're gonna win," she said, referring to the NFL.
 
For Thom, that could mean simply removing the fleur de lis from her ‘Who Dat’ shirts.
 
She doesn't plan on fighting the NFL, but she says her situation prompted several attorneys to offer free representation.
Thom picked one, even trading a ‘Who Dat’ shirt for the legal service.
 
Now, she says state authorities may get involved.
 
"We were actually contacted by the Attorney General's office today to look into it further on behalf of the people of the city who are just trying to do this the right way," Thom said.

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