On May 25, 2020, George Floyd was killed when a Minneapolis police officer kneeled on his neck for 8 minutes, while Floyd was lying face down with his hands cuffed behind him. His last words “I can’t breathe” became the slogan of the protests that erupted nationwide and around the globe. Since then, the USPTO has received 33 applications to register “Black Lives Matter”/“BLM” and “I Can’t Breathe” (21 for the former, 12 for the latter) covering merchandise, including apparel, face masks, jewelry, greeting cards, board games, stuffed animals, bumper stickers and wine, and several applications for providing information in the field of human rights and promoting community service.
Not since 2014 when Eric Garner pleaded “I can’t breathe” 11 times as he was put into a chokehold by an NYPD officer, helping spawn the Black Lives Matter movement, has there been a surge in “Black Lives Matter” and “I Can’t Breathe” applications in the Trademark Office. Eighteen applications were filed at that time (16 for “Black Lives Matter” and two for “I Can’t Breathe”), all rejected by the Trademark Office. A review of these applications provides insight into the likely outcome of the recent applications filed in the wake of Floyd’s death.
The earlier applications for Black Lives Matter were rejected under Trademark Act Sections 1, 2, 3 and 45, because the phrase Black Lives Matter merely conveys an informational social and political message that is not registrable. The Trademark Office cited In re Hulting, 107 USPQ2d 1175, 1177-1179 (TTAB 2013), holding that “No More RINOS!,” a slogan meaning “No More Republicans In Name Only” is not registrable for various paper goods, apparel and novelty buttons because the mark would be perceived merely as a commonly used political message that does not function as a trademark to indicate the source of the applicant’s goods and to identify and distinguish them from others. Also cited was In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229-31 (TTAB 2010) (holding “Once a Marine, Always a Marine” not registrable for clothing because the mark would be perceived merely as an old and familiar military expression). Similarly, consumers are used to seeing the wording Black Lives Matter as a message of support for raising awareness of civil rights and protesting violence that is used by many different sources and would not perceive it as a mark identifying a single source.
The earlier filings of “I Can’t Breathe” for clothing were refused based on Trademark Act Section 2(a), false connection. The examining attorney attached evidence showing that the wording I Can’t Breathe is very closely associated with Eric Garner and concluded that the public would presume a connection between his estate and the applicants’ “I Can’t Breathe” clothing. The applications were also refused because, like “Black Lives Matter,” “I Can’t Breathe” is a slogan used in rallies and protests to raise awareness of civil rights and protest violence. The phrase is commonly used as an expression of support and would not be viewed as an indicator of source. Trademark Act Sections 1, 2, 3 and 45.
At least two applicants of the recently filed “Black Lives Matter” applications have had second thoughts and expressly abandoned their applications. The Trademark Office is likely to refuse all of the other pending “Black Lives Matter” and “I Can’t Breathe” applications because they are informational slogans incapable of functioning as trademarks and because the applications for I Can’t Breathe suggest a false connection with George Floyd and Eric Garner.