NEW ORLEANS -- The battle over who owns the phrase "Who Dat" is already in court, and several merchandisers in the metro area received letters saying they are required to pay licensing fees to the company Who Dat?, Inc. to sell anything with the phrase printed on it.
Who Dat?, Inc. maintains that they've been licensing the phrase since the 1980s, and it's their intellectual property.
“In 1983, we got excited and wrote a song,” said Steve Monistere about how they ended up registering a trademark of ‘Who Dat?” that same year.
No one denies that Sal and Steve Monistere and Carlo Nuccio wrote a version of "When the Saints Go Marching In," performed by Aaron Neville, with the “Who Dat” chant in the song.
But the issue is not who owns the song, but who owns the phrase "Who Dat."
“When I utilized it, I was lucky enough to go ahead and trademark it,” Monistere said.
The Monisteres registered for a state trademark in 1983 under their newly formed company, Who Dat?, Inc.
"Who Dat?, Inc. was the first to take the word ‘who’ and ‘dat’ and attach it to goods and services," said Brandon Frank, attorney for Who Dat?, Inc.
They also applied for a federal trademark.
In the '90s, Who Dat?, Inc. didn't maintain that registration and the patent office vacated it. At that point, a business man out of New York applied for a "Who Dat" trademark.
The Saints challenged it, and his application is still pending, which is why the patent office refused Who Dat?, Inc's 2010 trademark application.
“They continued to use it in commerce, and maintain common law rights,” Frank said.
The Monisteres sent out cease and desist letters to a number of New Orleans merchants, including t-shirt maker Lauren Thom, of Fleurty Girl.
“If I have to pay it in order to sell it, then I will. But I just don’t feel like we should have to,” Thom said.
The phrase "Who Dat" is everywhere in New Orleans. Be Sweet Cupcakes on Magazine Street is even marketing a Who Dat cupcake. So, at what point does "Who Dat" enter the public domain?
“The use is so prevalent, how can they continue to have rights? They might,” said trademark attorney and founding partner of Carver Darden, Ray Areaux.
The law professor said Who Dat, Inc's original trademark was never challenged, but it still could be.
“There's another issue here which is called ornamental use, which is, ‘Who Dat’ isn't the tag on the back of the shirt. It isn't the brand, it's not like Nike. It's being displayed on a shirt, so there's an ornamental use issue here,” Areaux said.
Thom feels it's a cause as much as a case for the courts.
She is urging people wearing yellow ribbons to support "Who Dat."
“We're gonna take this all the way until we know the answer,” she said.
But the Monisteres insist they own the trademark, and that it's a business issue.
“We've been able to come to business solutions with just about everybody, except with just a few,” Monistere said.
After the Super Bowl win, Who Dat?, Inc. sued the NFL, the Saints and the state of Louisiana for copyright infringement over the ownership of ‘Who Dat.’
The Saints then counter-sued, saying Who Dat?, Inc. violated their trademark by selling goods containing black and gold and the fleur de lis.
It's a complicated battle that still has the public saying, the fans own "Who Dat," and that nobody should have the right to it.