Branding a Cause: TM Application For ‘Black Lives Matter’ And ‘I Can Breathe’ Falls Flat

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From India’s ‘Simon Go Back’ to Suffragettes’ ‘Votes for Women’ to America’s anti war ‘Not in My Name’, slogans have always held the power to unite. The rallying cry ‘Black Lives Matter’ (BLM) has gained new momentum amidst the protest against systematic racism in American policing. Thousands of people across the globe have taken to the streets to protest the murder of George Floyd by the hands of the police.

In other news, trademark (TM) applications for the terms “BLACK LIVES MATTER” and “I CAN’T BREATHE” have surged. The applicants have faced backlash over the blatant abuse of opportunity and intention to profit off tragedy. 

History of Black Lives Matter (BLM)

In 2013, Alicia Garza, Patrice Cullors and Opal Tomett, were discussing the acquittal of a man who killed Trayvon Martin. Martin was a 17-year old black teenager in Florida. “Our Lives Matter, Black Lives Matter,” Ms. Garza wrote on Facebook. Ms. Cullors replied, “#BlackLivesMatter”. Ms. Tometi joined in and the hashtag spread its digital wings.

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From then on, the murder of innocents like Michael Brown, Sandra Bland, Tamir Rice and many more have turned #BlackLivesMatter from a hashtag to a movement. BLM is now an organized movement with a foundation in its name working globally. The organization sells official merchandise, proceeds from which goes to fund the movement. The founders chose not to trademark these powerful phrases that would restrict public use. 

‘I can’t breathe’ became a rallying cry after Eric Garner’s murder in the hands of the police on camera went viral. Like George Floyd, Garner’s last words were ‘I can’t breathe’.

Facts of the Case 

Manchester-based businessperson Georgios Demetriou filed trademark applications “I CAN’T BREATHE” (Application no. 3497640) and “BLACK LIVES MATTER” (Application no. 3497647). He is the founder of bicycle selling business Licence to Thrill Ltd.

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In an interview, he claimed that he had submitted the applications to raise money for charity. The proceeds from the charity would go to ‘help people from Manchester and beyond’. He hopes to build relations with ‘big name’ companies who would pay him ‘royalty’ for using the terms. Ironically, Dimitri also said that these trademarks would belong to the people and not to him. 

Public backlash and response of UK Intellectual Property Office (UKIPO)

Social media had exploded when news of the TM applications broke out. Twitteraties were quick to point out Demetriou’s abject apathy towards the cause. UK TM expert Erik Pelton said attempting to secure exclusive rights to use these phrases is reprehensible and likely to fail. Demetriou claims that he had gotten threat calls, along with his employees.

UKIPO in an unprecedented move responded via a tweet on twitter. It stated that decisions of the IPO are important for both the applicant and the public. They have a responsibility to examine the validity of all applications like these under trademark law. Their decision will not be without recognition of current and historical injustices. It further invited ‘observations’ by the public if the registration process reaches that stage. Ultimately, Demetriou withdrew the TM application citing fear from threat.

Analysis

Since the death of George Floyd, there have been at least 26 TM applications of these terms in USA. In general, efforts to trademark political slogans or campaign slogans are not new. Trayvon Martin’s mother herself moved to trademark ‘I am Trayvon’ and ‘justice for Trayvon’ after he was brutally killed by the police in 2012.

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In 2017 Hard Candy, a cosmetic company moved to trademark #metoo after it gained momentum on social media. While Hard Candy withdrew the application facing public backlash, Trayvon’s mark is registered. Trademarks are marks that identify the source of goods and services. Its primary purpose is for consumers avoid to confusion.

Nearly anything can be subject of trademark including color, smell etc. as long as it serves the purpose of identifying source of product. Political slogans can be trademarked as Donald J. Trump successfully registered the phrase ‘Make America Great Again’ in 2015. Trump has used ‘MAGA’ as a brand strategy, selling himself with the slogan during the Presidential run of 2016.

On the other hand, slogans such ‘BLM’, ‘I can’t breathe’, ‘Boston Strong’ etc have become universal and cannot be attributed to one ‘proprietor’. Even the people who have coined the terms/phrases do not own them. Previously, while rejecting these types of applications USPTO said these marks used in rallies, are dedicated to raising awareness of civil rights, protesting violence and conveying the message of support for the same. According to IP expert Lee Curtis, registering these trademarks is contrary to public policy or to accepted principles of morality. 

Conclusion

There is an economic undertone to trademark. It restricts others from using the mark without the permission of the proprietor. These events prove that opportunistic trademark applications can face extreme backlash. However, as UKIPO rightly said the registry has to consider each application individually keeping in mind its impact on the greater community.


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