Who Dat? Sues Saints, NFL and Louisiana

     BATON ROUGE (CN) - Who Dat? Inc. claims the New Orleans Saints and NFL Properties are taking a free ride on 25 years of Who Dat's hard work promoting the trademarked phrase, "Who Dat?" The two brothers who run Who Dat? say they coined the phrase in 1983 as a Saints battle cry, and now the Saints and the NFL are unfairly cashing in on it.
     According to the federal complaint, Who Dat? "was uniquely positioned to reap substantial financial rewards in connection with the 2009-2010 National Football League season," when the Saints won their first Super Bowl.
     But "On the eve of that success NFLP and the Saints filed public documents claiming ownership and first use of the phrase," according to the complaint.
     "As anyone would have anticipated, the public voiced outrage and State of Louisiana officials publicly challenged the claims made by the NFLP and Saints. Since those entities were not the first users of the phrase and had no standing to make the claims made, they publically conceded that they did not own the phrase," Who Dat? says.
But wait; it gets worse: "With that concession in hand, state officials declared victory and further declared that the phrase belongs to the people, as it is in the public domain. As a natural consequence of these actions, Who Dat?, Inc. was not able to obtain the financial fruits of its labor."
     Who Dat? says, "the Saints and NFLP successfully played their cards to make sure that if they were not going to profit from the success of Who Dat then nobody would, despite that the mark has become one of the most recognizable in all America and quickly became well-known around the world."
     Brothers Sal and Steve Monistere say they were born and raised within a few miles of the Louisiana Superdome. According to their 60-page complaint, the brothers "were in attendance for the Saints' first exciting kickoff in 1967, Dempsey's historic field goal, and as season ticket holders experienced many of the ups and downs over the years.
     "Simply put, they are big Saints fans and are the proud founding members of the 'Who Dat Nation!'"
     Steve Monistere says that in 1983, he "decided to develop a phrase that could be used as a battle cry unique to fans of the Saints."
     With the help of his friend Carlo Nuccio, Monistere says he created Who Dat? Inc. and trademarked the phrase "Who Dat?" in 1983.
     Who Dat? Inc. also produced the original Who Dat? song featuring Aaron Neville and a handful of Saints players, according to the complaint. At that point, "Who Dat Nation" was born and "Who Dat? Inc. was living the dream," the complaint states.
     Who Dat? Inc. has been selling goods and services since 1983, including sound recordings, live events, a fan club, clothing, compact discs, paper goods, advertisements, coffee, champagne, soft drinks and snacks.
     Who Dat? Inc. says developed and produced radio and TV jingles to promote its brand. If not for Who Dat? Inc.'s "hard work and investments in time, energy, and money put forth," Who Dat? Inc. insists, the phrase Who Dat? "would not have gained the recognition it enjoys today."
     In April 1988, the "Saints inexplicably registered" for a Who Dat trademark, the complaint states. The Saints wanted Who Dat? Inc. to play a role in creating a "Who Dat! Fan Club" for the upcoming season, Who Dat? says, adding that it executed an agreement with the Saints and a fan club was launched "with life memberships for Who Dats everywhere."
     As part of that agreement, Who Dat? says, the Saints agreed to transfer all right, title and interest in the trademark Who Dat? to Who Dat? Inc., including the Saints' April 8, 1988 trademark registration.
     But In 2007 the Saints applied for a Who Dat? trademark again. In its application, the team claims that it was the first to use the Who Dat? mark and that it began doing so on Nov. 1, 1983, which, Who Dat? Inc. says, "of course, could not be further from the truth."
     Who Dat? Inc. says that after the 2007 trademark application, the "Saints and NFLP entered into licensing agreements with Reebok International Ltd. and others to use the Who Dat trademarks and reap the benefits of Who Dat? Inc.'s goodwill."
     Without realizing that its trademark had been infringed, Who Dat? Inc. says that in September 2009 it approached the Saints and the NFLP about jointly working on projects through a mutually beneficial licensing agreement.
     "Instead of confessing the actions recently taken adverse to the interests of Who Dat? Inc.," the Saints and NFLP "tried to grind out the clock on the football season by taking their time to respond to correspondence and then giving excuses about one person or another being out of the office," according to the complaint.
     Then the NFLP, on behalf of itself and the Saints, sent cease-and-desist letters to entities using Who Dat, and claimed they owned the trademark. At the same time, the Saints applied for a Who Dat trademark in Florida so it could sell Who Dat merchandise during the 2010 Super Bowl.
     Who Dat? Inc. claims that when the Saints and the NFL were challenged on their false claims to own Who Dat, the team and the NFL conceded they do not own the marks after all.
     "But instead of stopping there, [NFL Spokesman] Brian McCarthy speaking on behalf of the NFL Properties happily went a step further and stated that 'people can use Who Dat all they want if it doesn't include NFL and Saints trademarks.'"
     "Taking their cue, elected officials for the State of Louisiana declared 'victory' over the oppressive NFLP and the Saints and have repeatedly declared that the phrase belongs to the people and is in the public domain. For example, Attorney General James D. 'Buddy' Caldwell has a 'news release' on the front page of the Office of Attorney General's website wherein he states that Who Dat and the fleur-de-lis are public domain."
     This is when Who Dat? Inc. says its "dream became a nightmare."
     Between November 2009 and February this year, 39 trademarks were filed for Who Dat.
     Who Dat? Inc. says that after the Saints won the Super Bowl win, Who Dat was the third most-searched phrase on the Internet.
     Who Dat? Inc. says it has sent cease-and-desist letters to several companies and the NFLP and Saints for unauthorized manufacture and distribution of Who Dat merchandise.
     As a result of the trademark confusion, Who Dat? Inc. says companies such as Coca-Cola, which might have entered into licensing agreements with it, began using the mark without Who Dat? Inc.'s permission.
     "It is because Who Dat? Inc. finds itself in this perilous position that it seeks extraordinary relief from the court to immediately restrain the defendants from engaging in the illegal conduct. ...
     The requested temporary restraining order and request for injunctive relief will allow the maintenance of the last, actual, peaceable, and uncontested status quo."
     In addition to the New Orleans Saints and NFL Properties, Who Dat? Inc. sued Louisiana and its Secretary of the State. It seeks punitive damages for fraud, trademark infringement, and breach of contract and an order that the NFLP and the Saints never again register for a Who Dat trademark or any derivation of it.
     Who Dat? Inc. is represented by Joseph Piacun of Metairie.