The Saints, the playoffs and exceeding expectations_lowres

The Saints look for Two Dat to start with a win at Seattle tomorrow.

Drew Brees had barely hoisted the Vince Lombardi Trophy when Wayne Babovich, a New Orleans attorney and former city councilman, got to thinking.

“I just felt that after the first win, there would be an opportunity to capitalize,” he said.

So three days after the Saints won the 2010 Super Bowl, on a day when hundreds of thousands of Who Dats crammed downtown New Orleans in cathartic revelry, Babovich was submitting forms to the U.S. Patent and Trademark Office.

His big and possibly prescient idea: “Two Dat.”

Babovich, 71, claims trademark rights to a phrase that Saints fans seem eager to embrace, nine years later, as the team enters the playoffs as the betting favorite to win a second NFL championship.

It could mean a nice payoff from T-shirts, ball caps and other apparel adorned with a play on “Who Dat?” the guttural mantra that erupted in popularity during the team’s last Super Bowl run. But nothing is certain, and like “Who Dat?” before it, control over “Two Dat” is headed to court.

Babovich’s company, Two Dat Inc., this week sued Who Dat? Inc., claiming the latter breached an agreement the two firms signed in 2010. That deal called for Who Dat? Inc. to sell “Two Dat” merchandise and pay Babovich royalties of 5 percent to 7.5 percent.

A tie-in with Dan Green, a motivational speaker and author of a book called “Finish Strong,” promised additional revenue, court filings show. If there were “Two Dat” songs, Babovich would squeeze some pennies from those as well.

But Babovich now claims Who Dat? has stiffed him of royalties while ignoring several requests to let him review the company’s books.

Neither Steve Monistere, owner of Who Dat? Inc., nor the company's attorney responded to a message seeking comment.

Among his biggest questions, Babovich says, is whether Who Dat? Inc. transferred any of his trademark rights to the NFL or the Saints under a previous settlement that ended a federal lawsuit over control of the "Who Dat?" trademark. 

“If the NFL has purchased the rights to Who Dat and Two Dat, then I need to talk to the NFL about royalties,” Babovich said.

A Saints spokesman did not respond to a message seeking comment.

The team and the league became targets of ridicule before backing off their claim that the phrase “Who Dat” was the NFL’s exclusive property when it referred to the Saints. The challenge was part of a league clampdown on unlicensed merchandise, from T-shirts to coffins.

Terms of the league's settlement with Who Dat? Inc. were not disclosed, though it appeared to allow both entities to market apparel featuring the catchphrase. The deal embittered other apparel companies that were fighting Who Dat? Inc. in court. They argued that the history and common use of the phrase placed it squarely in the public domain — meaning no one can own it.  

To some locals and lawmakers, the NFL's initial stance smelled of shameless profiteering. The phrase "Who Dat" dated back decades, featured in black entertainment long before it came to be tied to the Saints in 1983. That’s when Monistere, owner of Who Dat? Inc., put together a recording with Saints players and musician Art Neville that began to burnish the phrase as a team battle cry. 

By 2008, rapper Lil Wayne had dropped it into a hit song, “A Milli.”

In court, Who Dat? argued that Monistere and others had "nurtured" the phrase into the Saints-fan vernacular over decades and should reap the rewards.

“Two Dat” has yet to reach such lofty status and likely never will, said Robert W. Emerson, a University of Florida business law professor.

In a recent journal article, Emerson and co-author Katharine Collins cited the legal wrangling over “Who Dat” as one example of how trademark laws have jumped the rails. They also cited former NBA coach Pat Riley’s move to register “three-peat” as a trademark that he later licensed to the NBA.

“Two Dat” may be an easier trademark to justify, Emerson said, because it hasn’t been in the public lexicon and refers to a specific scenario: the Saints winning their second Super Bowl.

“This is distinguishable from ‘Who Dat,’ because we’re talking about a distinct situation that might have some profound power (based on) how well the Saints do in the next couple weeks,” Emerson said. “Conversely, it also probably means it doesn’t have too much power, other than for this experience.”

Babovich, a former New Orleans city councilman, long ago made a name for himself over a different speculative venture.

He resigned from the council in 1985 and pleaded guilty to mail fraud over an alleged scheme to profit from a zoning change he had engineered to make way for a hospital in eastern New Orleans. Babovich was trying to quietly buy up an adjacent parcel before the change, then flip it, prosecutors alleged.

Though the alleged scheme never bore fruit, Babovich served a few months in jail and had his law license suspended for two years. His conviction would soon be reversed, however, on the heels of a U.S. Supreme Court ruling that the federal mail fraud statute doesn't actually apply in cases like his, where the alleged fraud was against the right of citizens to good government.  

Back then, the Saints were perennial losers, having yet to make the playoffs or given fans much to boast about.

These days it's Super Bowl or bust, though Babovich admits he doesn’t have much of a backup plan should the Saints devalue his trademark with a third championship run.

“I’ve been asked that many times and nothing has really come to mind,” he said of a motto. 

“'Trois Dat,’ maybe," he offered. "I just hope we have that issue.”

Follow John Simerman on Twitter, @johnsimerman.