Final scheduling order set in 'Who Dat' litigation

By Alejandro de los Rios | May 4, 2011


Following a final pre-trial conference in April, U.S. District Judge Carl Barbier has issued an order laying out a schedule and deadlines in litigation over the ownership of the phrase "Who Dat."

Who Dat? Inc., run by brothers Sal and Steve Monistere, is suing the National Football League (NFL), NFL Properties (NFLP), the New Orleans Saints, Liquid Ventures Inc., Logo Express Marketing Inc., Monogram Express, Storyville Apparel, and Fleurty Girl for alleged misappropriation of the phrase Who Dat on their merchandise.

A trial date of April 23, 2012 has been set. Barbier's order states the trial "is estimated to last 3-4 weeks."

The order also states, "The court encourages parties to discuss possible settlement at an early date."

"Amendments to pleadings, third-party actions, cross-claims and counter-claims shall be filed no later than May 16, 2011," the order states.

Expert reports are to be submitted no later than Dec. 29, 2011. Witness lists are due Jan. 30, 2012.

The original suit was filed against the NFL after the league claimed to own the phrase and any relation to the Saints in February 2010, prior to New Orleans winning the Super Bowl. The plaintiffs added the non-NFL related retailers in an amended petition filed Oct. 12. In addition, Fleurty Girl's Facebook page has been shut down by Who Dat Inc.'s attorneys.

Metairie attorneys Joseph Piacun, Thomas Gennusa II and Reid Uzee; and Texas attorney Ricardo Cedillo are representing Who Dat? Inc.

New Orleans attorney Mark Edwards is representing Storyville. On Oct. 27, he filed a defense and counterclaim against Who Dat Inc.

The counterclaim states that the phrase "Who Dat" has been "applied to many sporting contests...for many decades before 1983" and that Who Dat Inc. "has abandoned any trademark rights it may have ever had in WHO DAT? by non-use and non-exclusive use for a significant period of time."

Atlanta attorneys Christopher Bussert, Jerre Swann, James Sullivan Jr. and New Orleans attorneys Lesli Harris, Michael Walshe Jr., Phillip Wittmann and Agnieszka McPeak are representing the NFL, NFLP and the Saints.

The suit claims that Who Dat? Inc. "developed and nurtured 'Who Dat' for over twenty-five years and was uniquely positioned to reap substantial financial rewards in connection with the 2009-2010 National Football League season."

The suit claims the NFL wrongfully applied to patent Who Dat? and tried to profit on the phrase. The petition states that, after being challenged, "the Saints and NFLP conceded that they do not own the 'WHO DAT' marks," but those statements "caused a great deal of confusion among the public" and that led to people using Who Dat? without Who Dat? Inc.'s authorization.

The NFL and the Saints' defense states that Who Dat Inc.'s "actions are a transparent and opportunistic effort to capitalize on the equity and popularity of the New Orleans Saints as their fans celebrate the club's first Super Bowl victory."

In March, New Orleans attorney Darleen Jacobs filed a suit for injunctive relief on behalf of Who Dat Yat Chat Cafe, claiming that no one owns the phrase Who Dat? and that it lies in the public domain. That case has since been removed to federal court and consolidated with Who Dat? Inc.'s case.

According to the Cafe's suit, Who Dat? Inc.'s ownership claim of the phrase Who Dat is based under United States Federal Trade Mark Registration No. 2890070, but the registration certificate for that Trade Mark is for "Who Dat? Blues Band" and is listed as for "live performances by a musical band."

A search in United States Patent and Trademark Office's Trademark Electronic Search System reveals that 32 trademarks have been filed that use the phrase Who Dat in some capacity, 19 of which are still live. Who Dat Inc.? has nine registered Who Dat trademarks but only three, all filed in 2010, are still live.

Federal Cases 2:10-cv-01333-CJB-KWR and 2:10-cv-02296-CJB-KWR

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