The Battle of New Orleans


""[The Fleur-de-lis] a big part of what New Orleans is all about...It's just like when you look at the American flag and you sing the national anthem. When we see the fleur-de-lis, it makes us well up with pride."  - Drew Brees, February 2010

I'm sure all of us remember the now infamous fight for ownership over the phrase "Who Dat" that blew up nationally last year as the Saints were making their triumphant run for their first ever Super Bowl championship. After years of allowing anyone and everyone to use the phrase they claim they created, Sal and Steve Monistere sent out cease and desist letters to local vendors using it here in New Orleans.

Now, there is a new fight for ownership taking place and it revolves around another essential piece of Saints history and culture: the fleur-de-lis. 

On September 7, 2010, unbeknown to nearly everyone, Michael Joseph Messier of Rutland, Vermont and descendant of the New Orleans founding families of d'Iberville and de Bienville, filed a 17-page lawsuit against the New Orleans Saints, the NFL and the state of Louisiana in an upstate New York courtroom. It is a complaint for damages, declaratory and injunctive relief for the misappropriation of the fleur-de-lis. A ruling is still pending.

In other words, Messier is claiming that he and his family are the rightful owners of the team logo we have come to know and love as Saints fans. You might think I'm kidding...but I'm not. 

Why haven't we heard about this yet? I really don't know. Personally, I'm surprised. In fact, the only mention of the lawsuit I could find on the subject - other than the official court documents - was this small, four-paragraph snippet at the very end of an article from the Times Union, a newspaper based out of Albany, NY.

Until now. 

The Lawsuit  

The basic premise of Messier's lawsuit filing (it appears as if he's a lawyer representing himself) is that his family were the originators of the symbol as far back as 1,500 years ago and have been using it ever since then: 

New Orleans Founding Family, members names sieurs de Saint(s), d'Orleans planted the original (first) and claims continual use of the Fleur de Lis (Lys), and Names applied to goods and services, hardware and software internationally at least as early as c. 450, in North America c. 1534-5, the Southern United States c. 1534-1564, Gulf Coast c. 1699 and New Orleans c. 1680-1714.

The for profit NFLP and NFL's NOLA Team filed public documents falsely claiming ownership of the "Fleur de Lis (Lys)", (Nouvelle/New) "Orleans" and "Saints"; symbols, lines, and names. They then appear to have conceded that they were not the first users of the "Fleur de Lis (Lys)", but appear to contend exclusive commercial (for profit) rights to "New Orleans" "Saints". Louisiana state officials declared that the "Fleur de Lis (Lys)" symbol belongs to the people, it appears even in for profit commerce depriving its originators of their rights without compensation, a takings without due process. 

As evidence, Messier cites myriad examples of the fleur-de-lis' association to his family all through history including, but certainly not limited to, museums, libraries, buildings, documents and much, much more. For example, check out this helmet of Charles VI, a distant relative. Kinda looks like an old school Saints helmet, eh? Here in New Orleans you can find evidence in the St. Louis Cathedral, the Cabildo next door and in the colonial archives at city hall, even including the original plans of our great city. 

Messier also acknowledges that his family has previously entered into license agreements with other manufacturers and distributors of merchandise, allowing them to use his family's trademarks and thus, setting precedent for the requirement of permission to use those trademarks, something the NFL, the Saints and the sate of Louisiana have not done.  

Note that it's not just the fleur-de-lis that Messier asserts his family rightfully owns. His lawsuit also seeks to claim ownership of the terms "New Orleans" and "Saints" as well.

And it's not just the NFL and the Saints that Messier has an issue with either. It's the entire state of Louisiana:

I have had two conversations with the current LA State's attorney's office regarding my Founding Family's first use and rights to the trade marks, symbols and names, and I believe their public positions on for profit entities on these issues are not well founded. 

As you might expect, Messier does not have a problem with the use of the fleur-de-lis as it relates to non-profit use but only it's use for profit:

My Founding Family believes and is willing to concede non-profit applications benefiting our world community in tasteful, reasonable peaceful, moral and ethical applications are acceptable...

...But, wherever and however value is added / for profit my Founding Family has and will continue to claim, protect and preserve our right to the signs and symbols, names, and lines in commerce / trade as we have for a millennium and centuries. 

So what does Messier hope to achieve with this lawsuit? Quite a few things. First, he wants the NFL and the Saints to stop acting as if they own the fleur-de-lis or the phrases "New Orleans" and "Saints" as they did with local vendors during the "Who Dat" controversy.

This case attempts to apply a reflecting mirror of the "cease and desist" orders the NFL issued to small vendors in the fall of 2009.    

And, of course, he wants money:

II. That Founding Family recover all profits derived by Defendants from the "Fleur de Lis (Lys)" "New Orleans" "Saints" trademarks.  

III. That Founding family recover all profits derived by third parties from the "Fleur de Lis (Lys)" "New Orleans" "Saints" trademarks.

IV. That Founding Family recover the diminished value of the "Fleur de Lis (Lys)" "New Orleans" "Saints" trademarks.

 

NFL Response

Before taking the issue to court, Messier claims to have first contacted the league and Saints organization on his own but received no response:

I have had at least four conversation with NFL's attorney's with no material response or expression of willingness to enter into talks, or negotiations, related to their for profit applications of Founding Family's "Fleur de Lis (Lys)" "New Orleans" and "Saints" symbols and names. I have also provide the NFL two emails, the latest on attempt on Sunday, August 29, 2010 with no NFL or NFL's NOLA Team response. 

Sounds about right. They don't answer my emails either. 

Following the original filing of this lawsuit on September 7, 2010, both the league and the Saints were issued a summons legally requiring them to acknowledge the suit and appear in court.  

Almost a month later, on October 1, 2010, the Saints, the NFL and the state of Louisiana filed a 13-page motion to dismiss the case as frivolous. You can read the entire motion here but here are the basics: 

Nowhere in the Complaint does Plaintiff actually allege his own prior use of continuous use of any trademark. For this reason alone, he cannot maintain an actionable claim for infringement under the Lanham Act, much less plausible claim, and the Complaint must be dismissed. 

But Plaintiff also fails to allege a sufficient connection to a prior, continuous use by any member of the amorphous Founding Family (dating back untold hundreds of years) that could possibly give Plaintiff standing to sue. 

Complaint are seven or eight who allegedly first used the Fleur de Lis at various locations in North America during colonial times, but there is no allegation that any of those individuals use any mark specifically in connection with sports, much less American professional football - which did not yet exist.  

Following some back and forth, however, the court is still considering the plaintiff's case. And still we wait for an official decision to be made. 

 

Opinion

I'm definitely not a lawyer (I just play one on the internet) but it doesn't seem like Messier has a snowball's chance in hell of receiving a favorable ruling. I don't think anyone would argue that his family are the true originators of the  the fleur-de-lis and the phrases "New Orleans" and "Saints." But, like the "Who Dat" controversy, to claim control and ownership of these trademarks after such a long period of time in the public domain and without prior claim seems nearly impossible. Messier's ownership demands appear to be too little, too late. 

 

Links

Messier Complaint

NFL Motion to Dismiss

Messier V. NFL, Saints, state of LA Docket

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