Woman Seeking to Trademark “I Can’t Breathe,” Eric Garner’s Dying Words and Rallying Cry of Protesters

An Illinois woman is trying to trademark Eric Garner’s last words — “I can’t breathe” — for use on T-shirts and hoodies.

On July 17, white police officers confronted 43-year-old African-American Eric Garner over the distribution of unlicensed cigarettes. A friend of Garner’s caught the incident on video. Though Garner resisted arrest, he did so non-violently, saying “Every time you see me you want to arrest me, I’m tired of this. This stops today… I didn’t do nothing… I’m minding my business, officer…”

Officer Daniel Pantaleo then placed his left arm around Garner’s neck, and his right arm up below Garner’s right arm, who then fell. As Pantaleo and three other white officers tell Garner to put his hands behind his head, Garner repeatedly tells them “I can’t breathe,” which then became his final words.

On December 3, a grand jury decided not to indict Pantaleo, prompting protesters across the nation to take action. They have been rallying under Garner’s dying words. They put the phrase on signs and t-shirts, which are a great way to unify groups and organizations, and took to the streets to protest.

On December 13, 57-year-old Catherine Crump — who is not in any way related to the late Garner — applied for a legal registration of the phrase that has become a symbolic slogan for the masses protesting racism and police brutality.

According to The Smoking Gun, Crump says she hadn’t consulted with Garner’s before filing her trademark application, but that she isn’t seeking to profit off of the phrase. However, Crump also claims in her trademark application to have been using the phrase commercially since August 18. She also declined to explain what other possible motive she could have for wanting to trademark the rallying cry.

“If she’s not the first person to make these T-shirts, she’s going to be out of luck,” said University of Chicago law professor Jonathan Masur. He explained that if she was not the first person to print “I Can’t Breathe” on a t-shirt or hoodie, then she won’t receive the trademark, even if she was the first person to submit a trademark application for it and regardless of whether or not anyone else files.

If she does win the trademark, others who produce t-shirts or hoodies with “I Can’t Breathe” would have to pay royalties to her. The trademark, according to Masur, could conceivably “be worth a considerable amount of money. They could make a tidy sum.”

Luckily for protesters, the trademark only applies to its use on the clothing identified in the application — t-shirts and hoodies — and wouldn’t prevent them from using it on other material goods, such as protest signs, so it could still be used at demonstrations.

“You don’t get absolute monopoly rights over the words you trademark,” said Loyola University law professor Cynthia Ho, “because that would violate the basic premise of free speech.”

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