On Dec. 6, Chicago Bulls point guard Derrick Rose wore a homemade shirt during a pregame shootaround. In white text on a black background — and in the alarmingly garish Comic Sans font — it read "I Can't Breathe."
These were the last words, repeated no fewer than 11 times, of asthmatic New Yorker Eric Garner before he died from a police chokehold over the summer. This month, a Staten Island grand jury declined to indict the officer who killed Garner, the latest instance of a white police officer who killed an unarmed black man eluding accountability.
Garner's epitaph was transformed into a hashtag and, surely enough, a fashion accessory. Protests from coast to coast featured tables where one could purchase a shirt identical to Rose's. Here in San Francisco, the bootleg sports swag stands at gas stations in the outer neighborhoods (49ers and Giants paraphernalia in which, conveniently, the SF does not interlock) now feature "I Can't Breathe" T-shirts.
The local asking price, $10, is an improvement over what you'd find on the internet, where $12.99 (plus shipping) seems to be the most bargain of basements. That $10, per a city printer, represents a 40 to 60 percent markup.
Garner leaves behind a wife and children. They could certainly use some of the proceeds gleaned from merchandising his dying words.
But they won't be getting any.
Garner's heirs (or a random opportunist) could trademark the phrase "I Can't Breathe." Basketball coach Pat Riley trademarked "threepeat," after all.
But, UC Hastings professor Ben Depoorter points out, trademark law exists largely to clear up confusion. That is to say, as if Nike put out a line of "I Can't Breathe" shirts and buyers of bootleg junk thought they were purchasing Nike apparel. "People are not buying these shirts because they are made by Company X," explains Depoorter. "They're doing it because that sentence means something to them."
Additionally, those shirts, like many of the actions of those wearing them, are permissible for the same reason: The First Amendment.
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