USPTO rejects ‘I can’t breathe’ trademark applications

The US Patent and Trademark Office (USPTO) has rejected two applications to register the protest slogan ‘I can’t breathe’ as a trademark, including one the agency said was intended for social media use.

The applications cover the terms ‘I can’t breathe’ and ‘#Icantbreathe’. They were filed by US resident Catherine Crump and Ublerb, a Chicago-based social media management company, respectively.

Both applications were filed in December and cover clothing products.

The phrase ‘I can’t breathe’ was popularised following protests across the US in response to the death of Eric Garner.

Garner, a cigarette seller, died in July 2014 following an altercation with two police officers in New York.

Witnesses at the scene of the incident claimed Garner was put in a choke hold by the officers and shouted the words “I can’t breathe” repeatedly.

The statement has since been used by people (including on social media) protesting against the decision not to charge the police officers involved in the incident.

The hash-tagged phrase ‘#Icantbreathe’ has been tweeted more than 1.3 million times. Among the notable users of the hashtag were actors Chris Rock and Aaron Paul, and musician Iggy Azalea.

In the USPTO’s rejection of Crump’s application, on March 4, and Ublerb’s, on March 6, it stated that the applications “may falsely suggest a connection” with Garner.

“Although Eric Garner is not connected with the goods provided by the applicant under the applied-for mark, this phrase associated with Eric Garner is so famous that consumers would presume a connection,” the USPTO said.

Despite Ublerb’s application not specifically mentioning an online use for the trademark, the USPTO claimed the inclusion of the hashtag before the phrase meant its intended use is for “online social media”.

The USPTO added: “A hashtag generally serves no source-indicating function and adding such symbol or term to an otherwise unregisterable mark does not register the mark registerable.”

Both parties have until September to respond to the USPTO’s decisions.

Neither Crump nor Brent Sausser, an attorney at law firm Sausser & Spurr and representing Ublerb, responded to a request for comment.

This story was first reported on WIPR.