Supreme Court to Weigh in on Trademarking Trump Too Small without Ex-President's Consent
The Supreme Court case examines whether a political activist can trademark the phrase Trump Too Small without the ex-president's permission This First Amendment issue tests the boundaries of free speech and its application in commercial branding
In a Supreme Court case on Wednesday, a political activist's attempt to register a provocative phrase relating to Donald Trump's physical attributes and policies is under scrutiny, challenging the boundaries of the First Amendment. Although Trump is not directly involved in the case, his name will undoubtedly feature prominently in the oral arguments as the justices assess whether a federal trademark law, which prohibited the activist from trademarking "Trump Too Small" as a slogan for t-shirts without explicit permission from the former president, violates the First Amendment.
Attorneys representing activist Steve Elster argue that the mark criticizes Trump in a clever manner, referencing a well-known remark made by Trump during a 2016 Republican primary debate about his anatomy. Additionally, they assert that the mark reflects Elster's perspective on the president's overall governing style as being small-minded. The attorneys emphasize that, although the topic may seem controversial, the Supreme Court has previously invalidated certain aspects of the Lanham Act, which is the trademark law, in order to uphold free speech rights. Notably, the Court has struck down provisions that prohibited the registration of "immoral" or "scandalous" trademarks and also ruled unconstitutional a section of the law that denied trademark protection for disparaging marks.
The court now has the chance to curtail the law further as it reviews a provision mandating rejection of trademark registration if it involves a living individual without their written consent. Legal experts suggest that the justices could seize this opportunity to establish a more comprehensive interpretation of the First Amendment's impact on federal trademark law, albeit cautioning that a ruling in favor of Elster may unintentionally impact this particular legal domain.
From debate stage to courtroom
"Should this case declare this particular section of the Lanham Act as unconstitutional due to its infringement on the right to freedom of speech, it would result in an unintended consequence, allowing the owner of this exclusive right the ability to possibly restrict the free speech of others," explained Maya Tarr, a trademark attorney based in New York.
The current case stems from a notable disagreement between Trump and Florida GOP Sen. Marco Rubio during the 2016 Republican presidential primary. Prior to a debate, Rubio made a joke about the size of Trump's hands and stated, "You know what they say about men with small hands."
In response, Trump immediately countered by showcasing his hands to the audience and vehemently denying Rubio's insinuation that "something else must be small."
During the debate, Trump assured, "There's absolutely no problem, I guarantee." This statement resulted in a multitude of headlines, including CNN's "Donald Trump defends the size of his penis" and Vanity Fair's "Donald Trump assures America of his ample endowment."
Two years later, Elster attempted to register the trademark "Trump Too Small" for t-shirts. He claimed that the intended purpose of the trademark was to depict certain aspects of President Trump and his policies as small or insignificant.
However, the US Patent and Trademark Office rejected the registration application. The office reasoned that the use of the name "Trump" would be perceived by the public as a direct reference to the former president. According to the Lanham Act, if Trump does not give his consent, the registration cannot be approved.
Elster's appeal to the USPTO's Trademark Trial and Appeal Board was rejected. Subsequently, a federal appeals court determined that this rejection violated Elster's First Amendment rights. The USPTO, with representation from the Justice Department, has now appealed to the Supreme Court. The justices are now tasked with deciding whether such a refusal is a violation of the Constitution, particularly when the mark includes criticism of a government official or public figure.
A view of the U.S. Supreme Court October 2, 2023 in Washington, DC.
Drew Angerer/Getty Images
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The Justice Department argues that the refusal does not limit Elster's freedom of speech, but instead, it depends on the fulfillment of the Lanham Act provision as a requirement for trademark registration benefits.
In court documents, Solicitor General Elizabeth Prelogar contends that when commercial entities utilize names of others without consent, they are exploiting something that does not belong to them solely for their own commercial gain.
The DOJ is requesting the justices to evaluate the disputed statutory provision using a more favorable standard of review which could potentially make it easier for them to support the provision.
On the other hand, Elster's attorneys contend that the provision curtails speech based on its content and therefore should be subjected to the most stringent standard of review employed by the justices in cases involving free speech protections.
The authors argued that the registration of speech offensive to individuals would never be approved; thus, the clause essentially forbids the registration of any marks that disparage or criticize individuals. They further stated that by requiring consent, the clause grants public figures the power to determine if speech about them can be registered as a trademark, resembling a heckler's veto. They cited the Vidal v. Elster case as an example of how the clause does not align with any anti-deception goal.
"The phrase 'Trump too small' and the accompanying gesture directly undermine Trump, and it is evident that no sensible individual would interpret it as something he would support personally," the justices were informed.
Trump refrained from expressing his opinion on the case through a friend-of-the-court brief.
The court has recently strengthened First Amendment protections by rejecting the USPTO's decisions to deny trademark registrations under different sections of the Lanham Act. In a 2017 ruling, the court ruled in favor of Simon Tam, an Asian American musician and political activist, who chose to reclaim a previously derogatory term by naming his rock band "The Slants." Despite initial denial by the trademark office, claiming it was offensive to individuals of Asian descent, the court ruled in his favor.
Two years later, the justices invalidated a section of the Lanham Act that barred the agency from approving trademarks that were regarded as "immoral" or "scandalous." This decision opened up the opportunity for a clothing designer to seek a trademark for his clothing line named FUCT. CNN's Ariane de Vogue contributed to this report.
