Have Trademarks Gone Too Far? A Look into A Recent
It has been seven months since Eric Garner was killed in Staten Island, NY after being put into a chokehold by a police officer. Most Americans have seen the video with, Garner telling the officers repeatedly, “I can’t breathe.” Since then, the phrase has been featured in news reports, on warm up gear of major athletes, and in the chants of protesters around the country. It has become widely recognized as a plea for mercy, inspiring people to look deeper into our justice system. And what might seem odd to some, it has also been recognized as a potential piece of intellectual property. An Illinois woman filed a trademark application for the phrase on December 13, 2014.
Now, to begin, filing for a trademark means you are seeking to use the mark or phrase as a way to identify and differentiate your product or service. Here, Crump wants to do just that, telling the United States Patent and Trademark Office (“USPTO”) that she has been using the phrase on items of clothing and in commerce as early as August 2014. She also claims that she intends to continue using the mark on clothing, “namely hoodies, T-shirts for men, women, boys, girls and infants.” In order for the trademark to be registered, Crump must show that she was the first one to use the mark in commerce. So, if someone else had been using the phrase on similar clothing, she would be out of luck. If Crump can prove that she used the mark in this specific way first, the application will likely be successful. In that situation, she would stand to make a lot of money on sales of clothing toting that phrase, and on licensing to other clothing companies who wish to use it as well.
Now, let’s consider the situation. In a time when a jury’s failure to return an indictment is literally sparking riots, a woman turns to the law to find a way to profit. Among the riots, the protests, and celebrities supporting the cause, this seems to be quite a different approach to promoting the message. While at first it may seem odd, or even disrespectful, this move could be seen as a way to ensure that promotion. She is filing for the exclusive right to use the mark on shirts, which she will produce and sell to people, who in turn will wear them to these protests or out in public.
Further, such an opportunistic filing is not unheard of. In fact, multiple applications for the phrase “hands up don’t shoot” were filed just weeks after Michael Brown’s death in Ferguson. Even the ALS took advantage of their wildly successful “Ice Bucket Challenge” this summer by filing to trademark the phrase, along with “ALS Ice Bucket Challenge.” In that case, however, they withdrew the applications following public outrage. ALS received numerous messages from the public, who were offended that they would use such a positive, giving event to profit and prevent others from using the phrase.
After the tragedy at the Boston Marathon in 2013, many applications were filed to register the motto “Boston Strong.” This quickly became a rallying phrase used around Boston to keep spirits up. However, the USPTO denied all applications, responding specifically to Boston Beer Co.’s application stating “the use of the slogan is so widespread with respect to the marathon bombing as well as other uses, that its use has become ‘ubiquitous.’” While “I can’t breathe” is less all-encompassing than Boston Strong, there is potential for the USPTO to react in a similar way. This use has also become widespread, not just referencing Garner’s death, but as a call to arms for change in our system and a bold statement that black lives matter. It is not only used to rally around Garner, but to promote equality and change. It is possible that it, too, will be found ubiquitous.
The USPTO’s additional reasoning in denying Boston Strong applies here as well. They stated that “the applied-for mark merely conveys an informational social, political, religious, or similar kind of message; it does not function as a trademark or service mark to indicate the source of applicant’s goods and/or services and to identify and distinguish them from others.” In this situation, the similarities are obvious. Crump’s use of “I Can’t Breathe” is used as just such a message, not as a way to identify her shirts and distinguish them from others. But one can argue the shirts are much less important than the message printed on them.
This trend of trademarking such on-topic phrases in a strange one. While the value in registration is clear, one might question the motive. The events discussed above have had a significant impact on the nation, and in most cases are still active and sensitive topics. Yes, it is true that owning the trademark for these phrases will greatly benefit the holder, but at what cost? Is capitalizing on the recent issues in society truly the best way to make money? It will be interesting to see if the USPTO follows the precedent it set with the Boston Strong application, or whether it grants the mark to a woman not affiliated in any way with Eric Garner.