Who Dat Say Who Dat?
January 29, 2010
Any unauthorized use of the Saints colors and other [marks] designed to create the illusion of an affiliation with the Saints is equally a violation of the Saints trademark rights because it allows a third party to ‘free ride’ by profiting from confusion of the team’s fans, who want to show support for the Saints.
NFL spokesman Dan Masonson
If ‘who dat’ is used in a manner to refer to Saints football, then the Saints own the rights.
NFL spokesman Brian McCarthy
The basic idea of trademark as it developed in the common law is that someone cannot use the mark of another if it is confusingly similar to the mark of that other party. Now as I noted in the linked pieces above, the primary right should be the right of the consumer, not the trademark holder, and it should be more explicitly anchored in the notion of fraud–but you can see that the idea of “confusingly similar” is more or less related to the idea of fraud: if the competitor’s mark is so similar that it will confuse the consumer, it’s arguable the competitor is defrauding the consumer. But this has nothing to do with “dilution.” It’s focused on misleading the consumer (note that a clearer focus on this, and making it clear that the consumer, not the trademark holder, is the plaintiff, would not prohibit knockoffs such as cheap Rolex watches or Louis Vuitton purses, since in these cases the consumer is not defrauded or misled at all).
Because it is already so anchored, there is no need for anyone – the NFL or the fans – to claim ownership¹. If someone wants to make a contract with the Saints organization or the NFL, then they might very well rely on certain contextual clues that they are doing so with the authentic Saints or the authentic NFL. One of these clues just might be the Saints colors, symbology, or slogans on the property to be sold in the contract. If the NFL wants to capture the “authenticity premium” then they should take steps to indicate it clearly on the product, taking away all contextual ambiguity. They don’t have a right to force other people to pay – directly or indirectly – for that cost of doing business. “Trademark” is not something you own but is piece of contextual evidence, built up through reputation and time, that the consumer can use to argue a case they might want to argue about fraud.
As for the fans, once the above is clear, ownership is not needed to produce fan art or merchandise; you are free to be creative. Again, those producers simply have to take into account the risk that a customer will bring a fraud case against them if and when it mattered to the customer if the Saints or the NFL produced the item. That is also a cost of business (e.g. clearly marking the items as “unofficial”) that it is up to them accept or not.
If Masonson is really concerned about confused fans, then he can take his quote and drop it into the mission statement of a consumer advocacy and education organization. But he has no grounds (other than unjust IP law, of course) to wield those concerns as a method of inserting the party he represents into a contract negotiation between other people. And besides being insulting and disgustingly paternalistic towards consumers, it implicitly assumes that fraud is the only mode of operation by third-party producers. It may well be common (e.g. in the case of high value luxury items like watches), but certainly not in all cases; and, again, we already have something in the “natural law” for that: fraud law. Who dat people gonna need IP?
¹ Though it is not really a matter of need. You simply cannot justly own phrases in a coherent system of property. Nevertheless, even if it were just, it is intuitively clear that the insertion of trademark enforcement in this context is doing a great deal of unnecessary harm to cooperative and peaceful society; but that’s to be expected.