The U.S. Supreme Court barred on Thursday a federal trademark for the phrase “Trump Too Small” – an irreverent criticism of former President Donald Trump – rejecting a California lawyer’s claim that the trademark denial violated his constitutional free speech rights.
The justices unanimously overturned a lower court’s decision that the U.S. Patent and Trademark Office’s rejection of Steve Elster’s application to register the trademark to exclusively use it on T-shirts violated the U.S. Constitution’s First Amendment.
The case centered on a provision in a 1946 federal trademark law that bans the registration of any trademark that uses a living individual’s name without their written consent. At issue was whether free speech protections for criticism of public figures outweigh the U.S. Patent and Trademark Office’s concerns over Trump’s rights, as the lower court found.
The justices unanimously agreed that the “names clause” provision at issue is constitutional, but differed in their reasons for reaching that conclusion.
“Restrictions on trademarking names have a long history,” conservative Justice Clarence Thomas wrote for a majority of the justices. “Such restrictions have historically been grounded in the notion that a person has ownership over his own name, and that he may not be excluded from using that name by another’s trademark.”
Biden’s administration had asserted that the law is a permissible condition on a government benefit and does not illegally stifle free speech because it bars registrations regardless of the viewpoint conveyed. Elster argued that allowing public figures to trademark their own positive messages while precluding registrations that criticize them verges on viewpoint discrimination.
Elster applied for the trademark in 2018 to place on shirts – along with a mocking hand gesture illustration – invoking an exchange between Trump and U.S. Senator Marco Rubio during a debate among candidates for the 2016 Republican presidential nomination. Trump earlier had insulted Rubio as “Little Marco.” Rubio retorted that Trump had disproportionately small hands.
“Look at those hands. Are they small hands?” Trump asked at the debate. “If they’re small, something else must be small. I guarantee you, there’s no problem. I guarantee it.”
Elster said that “Trump Too Small” expressed his opinion about “the smallness of Donald Trump’s overall approach to governing.” Trump was president when the application was made.
Trump, the Republican candidate challenging Democratic President Joe Biden in the Nov. 5 U.S. election, was not personally involved in the case and has not commented on it.
The trademark office rejected Elster’s application. But the Washington-based U.S. Court of Appeals for the Federal Circuit sided with Elster, finding that the government’s interest in protecting the privacy and publicity rights of public figures did not supersede Elster’s right under the First Amendment to criticize them.
Elster’s application remained on hold at the agency pending the Supreme Court’s ruling.
The Supreme Court in recent years has struck down two trademark laws, citing free speech concerns. It ruled in favor of Asian-American rock band The Slants in 2017 against a ban on trademarks that “disparage,” and in favor of artist Erik Brunetti against a prohibition on “immoral” or “scandalous” trademarks in a dispute over his “FUCT” brand in 2019.