Supreme Court raises concerns over trademark for phrase ‘Trump too small’

The Supreme Court struggled Wednesday with whether it should strike down a federal law banning a trademark for “Trump too small,” as justices from both wings of the court raised concerns about the impact of green-lighting registration of the phrase.

The dispute came to the court after Steve Elster moved to register “Trump too small” to use on products, but the U.S. Patent and Trademark Office rejected his trademark request. He claims the denial ran afoul of his First Amendment rights.

At issue in the case is part of the Lanham Act, which governs trademarks. The law says the Patent and Trademark Office should refuse to register a trademark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” The prohibition has been in effect since 1946.

Mr. Trump is not a party to the case, and it’s safe to say he did not consent to the critical phrase “Trump too small.”

Justice Ketanji Brown Jackson, a Biden appointee, said trademark law exists to give people government benefits, not to restrict speech. She said anyone can still use the phrase “Trump too small.”

“Trademark is not about expression. Trademark is not about the First Amendment and people’s ability to speak,” Justice Jackson said. “It prevents confusion regarding whether or not this is endorsed by the living person.”

Justice Neil M. Gorsuch, a Trump appointee, said bars on using another person’s name have been around since the nation’s founding, suggesting there are no constitutional concerns about restricting speech.

“At the end of the day, it’s pretty hard to argue a tradition that’s been around for a very long, long time since the founding … is inconsistent with the First Amendment,” Justice Gorsuch said.

Mr. Elster sought to use the phrase “Trump too small” on T-shirts following a 2016 presidential debate. He moved to trademark the phrase in 2018 in reference to Mr. Trump’s policies, according to court documents.

He was denied a trademark based on the fact that Mr. Trump did not consent to his name being used. In rejecting the trademark request, the government reasoned that using names in trademarked phrases could confuse consumers, suggesting the person is linked to the product.

However, the U.S. Court of Appeals for the Federal Circuit said the government’s denial of the trademark ran afoul of the First Amendment. Although the law isn’t viewpoint discriminatory — as it prohibits the use of a person’s name without written consent even for positive motives and messages, not just critical ones — the law is still stifling some disfavored speech, the appeals court said.

The Biden administration appealed the case to the high court, asking the justices to reconsider the appellate court’s position. The feds argue the phrase can still be used without the benefit of trademark registration, suggesting speech isn’t actually being stifled.

Deputy Solicitor General Malcolm Stewart said the law restricts people from getting government benefits from using another person’s name.

“The agency need not and does not consider whether the mark is flattering, critical or neutral,” Mr. Stewart told the court. 

Mr. Elster, though, has argued in his legal filings that the court should strike down the law since it has allowed trademarks that appear to be positive of famous politicians but hasn’t allowed criticism, noting some examples in his legal brief.

“Under the clause, JOE 2020 has been registered, but not ‘No Joe in 2024.’ HILLARY FOR AMERICA has also been registered. But not ‘Hillary for Prison 2016.’ And BIDEN PRESIDENT is registered, while ‘Impeach 46’ was denied,” Mr. Elster’s brief noted.

Jonathan E. Taylor, who represents Mr. Elster, said his client is being denied legal rights and benefits due to the trademark law.

“The sole interest it sought to preserve is protecting the feelings of famous people,” Mr. Taylor said.

The case is Katherine K. Vidal, Under Secretary of Commerce for intellectual property and director, U.S. Patent and Trademark Office v. Steve Elster. A decision is expected by June.