Supreme Court Denies 'Trump Too Small' Trademark

The Supreme Court ruled that a slogan mocking Trump cannot be trademarked but can still be used. This decision touches on free speech and trademark law.

Published June 14, 2024 - 00:06am

8 minutes read
United States
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The Supreme Court recently delivered a unanimous verdict on the controversial trademark case involving the phrase 'Trump Too Small.' The court ruled that while individuals are free to sell merchandise bearing the phrase, they cannot trademark it due to a lack of consent from former President Donald Trump.

The case has its roots in an exchange between Trump and Florida Sen. Marco Rubio during the 2016 Republican presidential campaign. Rubio had mocked Trump's hand size at a rally, suggesting that men with small hands cannot be trusted. Trump subsequently addressed the comment in a televised debate, asserting there was no problem with his hands.

California attorney Steve Elster attempted to capitalize on this by designing T-shirts with the phrase 'Trump Too Small' and sought to trademark it. However, the U.S. Patent and Trademark Office (USPTO) rejected his application, citing Section 2(c) of the Lanham Act. This section prohibits trademarks containing the name, portrait, or signature of a living individual without their written consent.

Elster argued that the rejection violated his First Amendment rights to free speech. A federal appeals court initially sided with him, ruling the denial unconstitutional. However, the Justice Department pushed the Supreme Court to revisit the case, emphasizing that the law acted as a viewpoint-neutral condition on a government benefit rather than a restriction on speech.

In the Supreme Court's ruling, Justice Clarence Thomas stated that the Lanham Act's 'names clause' is a content-based but viewpoint-neutral restriction that aligns with historical legal precedents. The Court noted that the USPTO has consistently refused trademarks featuring the names of living individuals absent their consent, regardless of the viewpoint conveyed. T-shirts reading 'Welcome President Biden,' and 'I Stump for Trump,' were among the rejected applications.

Chief Justice John Roberts expressed concerns that if Elster's claim were accepted, it could lead to a race to trademark various permutations of politically charged phrases. Ultimately, the court concluded that while Elster and others could sell the 'Trump Too Small' T-shirts, they could not enjoy exclusive rights through a trademark.

Justice Sonia Sotomayor emphasized that the government is not restricting the use of the phrase, but only its trademark. She highlighted that the right to sell such merchandise remains intact, underscoring the distinction between expression and public branding rights.

In a joint amicus brief, the Foundation for Individual Rights and Expression (FIRE) and the Manhattan Institute argued the law constituted viewpoint discrimination, allowing named individuals to veto trademarks they disliked. However, the justices did not find this argument persuasive, reaffirming that the First Amendment does not guarantee exclusive commercial rights over political commentary.

This ruling provides critical insight into the intersection of free speech and trademark law, reaffirming the limitations imposed by the Lanham Act while preserving the right to political expression.

The Supreme Court recently delivered a unanimous verdict on the controversial trademark case involving the phrase 'Trump Too Small.' The court ruled that while individuals are free to sell merchandise bearing the phrase, they cannot trademark it due to a lack of consent from former President Donald Trump.

The case has its roots in an exchange between Trump and Florida Sen. Marco Rubio during the 2016 Republican presidential campaign. Rubio had mocked Trump's hand size at a rally, suggesting that men with small hands cannot be trusted. Trump subsequently addressed the comment in a televised debate, asserting there was no problem with his hands.

California attorney Steve Elster attempted to capitalize on this by designing T-shirts with the phrase 'Trump Too Small' and sought to trademark it. However, the U.S. Patent and Trademark Office (USPTO) rejected his application, citing Section 2(c) of the Lanham Act. This section prohibits trademarks containing the name, portrait, or signature of a living individual without their written consent.

Elster argued that the rejection violated his First Amendment rights to free speech. A federal appeals court initially sided with him, ruling the denial unconstitutional. However, the Justice Department pushed the Supreme Court to revisit the case, emphasizing that the law acted as a viewpoint-neutral condition on a government benefit rather than a restriction on speech.

In the Supreme Court's ruling, Justice Clarence Thomas stated that the Lanham Act's 'names clause' is a content-based but viewpoint-neutral restriction that aligns with historical legal precedents. The Court noted that the USPTO has consistently refused trademarks featuring the names of living individuals absent their consent, regardless of the viewpoint conveyed. T-shirts reading 'Welcome President Biden,' and 'I Stump for Trump,' were among the rejected applications.

Chief Justice John Roberts expressed concerns that if Elster's claim were accepted, it could lead to a race to trademark various permutations of politically charged phrases. Ultimately, the court concluded that while Elster and others could sell the 'Trump Too Small' T-shirts, they could not enjoy exclusive rights through a trademark.

Justice Sonia Sotomayor emphasized that the government is not restricting the use of the phrase, but only its trademark. She highlighted that the right to sell such merchandise remains intact, underscoring the distinction between expression and public branding rights.

In a joint amicus brief, the Foundation for Individual Rights and Expression (FIRE) and the Manhattan Institute argued the law constituted viewpoint discrimination, allowing named individuals to veto trademarks they disliked. However, the justices did not find this argument persuasive, reaffirming that the First Amendment does not guarantee exclusive commercial rights over political commentary.

This ruling provides critical insight into the intersection of free speech and trademark law, reaffirming the limitations imposed by the Lanham Act while preserving the right to political expression.

Experts in trademark law have noted that this decision could have far-reaching implications. For instance, businesses and individuals often attempt to trademark phrases or slogans that have gained popularity in the public domain, particularly those with political connotations or celebrity references. The Supreme Court's decision reinforces that without consent, these efforts will be significantly curtailed, preserving the personal rights of individuals over their names and likenesses.

Mark Lemley, a professor at Stanford Law School specializing in intellectual property, remarked on the broader impacts of the ruling. "The decision underscores a crucial balance – protecting individuals' control over their own identity while allowing a free flow of political discourse," Lemley said. He also highlighted that the ruling serves as a precedent for similar cases involving public figures and politically charged phrases.

The ruling also underscores the robust nature of the Lanham Act's provisions in safeguarding against unauthorized use of personal names and likenesses. This serves not only to protect individuals but also to maintain the integrity of the marketplace, ensuring that trademarks are a reliable source of information for consumers. The Court's decision thereby continues to uphold the integrity of the trademark system in the United States.

Moreover, this decision has been welcomed by advocates of intellectual property rights, who argue that robust trademark laws are essential to preventing abusive practices such as cybersquatting and personality hijacking. By denying the trademark application, the Supreme Court has effectively prevented a potential onslaught of similar cases where individuals might seek to profit without proper authorization.

On the political front, reactions have been mixed. Supporters of former President Trump view the decision as a victory for personal rights, emphasizing that no one should be able to co-opt an individual's name for profit without consent. On the other hand, free speech advocates, while disappointed by the denial of the trademark, appreciate that the sale of merchandise remains unfettered, ensuring that political commentary continues without undue legal restrictions.

Moving forward, this ruling is expected to serve as a guiding standard for cases where trademark applications intersect with personal names and political speech. It reassures the public and legal practitioners that the protection of individual rights will not come at the cost of suppressing political expression. As such, it represents a nuanced approach to a complex legal issue, maintaining a careful balance between free speech and intellectual property rights.

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