The Limits of Intellectual Property
The recent dustup between the NFL and T-shirt producers in New Orleans over who owns the phrase “Who ‘Dat?” — a rallying cry for the Saints — illustrates an important limiting principle for intellectual property — adverse public relations. (Full Disclosure: I live in Indianapolis. Go Colts!)
The NFL initially said that its trademark registration of “Who Dat?” prohibited the sale of unauthorized merchandise with that phrase. This claim was rather broad given that the phrase probably was used in New Orleans long before the league obtained its registration in 1988. In any event, the cease-and-desist letters sent by the NFL led to public outrage and a subsequent “clarification” that the league was referring only to merchandise that could be confused with official apparel.
While the formal rights accorded to patents, copyrights, and trademarks are sweeping, in practice they cannot be enforced to their limits because that would alienate potential customers. The suits brought by the music studios against illegal downloads were largely abandoned for this reason. Of course, there are many situations where shining the light of publicity on litigation will not deter someone from enforcing IP rights. Nevertheless, counsel representing someone who is the target of such a suit — especially when the defendant is David fighting Goliath — would be well-advised to concentrate on their media strategy rather than on their legal one.