Supreme Court rules against man trying to trademark ‘Trump too small’

The Supreme Court on Thursday ruled against a man trying to trademark the phrase “Trump too small” for T-shirts and hats.

The court was unanimous in the decision not to invalidate a federal law that makes it a requirement to have a living person’s written consent to use his or her name for a trademark — but the justices wrote separately on how they reached that conclusion.

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 request. He claimed 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 “consists 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.

Justice Clarence Thomas, who authored the court’s majority opinion, reasoned the law doesn’t discriminate on viewpoint, so there’s no First Amendment violation. 

He also said historically people have had a right to use and protect their own name and reputation.

“The names clause reflects this common-law tradition by prohibiting a person from obtaining a trademark of another living person’s name without consent, thereby protecting the other’s reputation and goodwill,” he wrote.

Justice Amy Coney Barrett, who was joined in part by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, wrote separately, saying the majority opinion didn’t need to revisit the history and traditions of trademark law to reach its conclusion.

“I would adopt a standard, grounded in both trademark law and First Amendment precedent, that reflects the relationship between content-based trademark registration restrictions and free speech. In my view, such restrictions, whether new or old, are permissible so long as they are reasonable in light of the trademark system’s purpose of facilitating source identification,” she wrote.

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

Mr. Elster sought to use the phrase on T-shirts following a 2016 presidential debate in which GOP candidates exchanged hits about hand size. He moved to trademark the phrase in 2018 in reference to President Trump’s policies, according to court documents.

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 — the law still stifles 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 justices’ decision sides with the feds, reversing the Federal Circuit’s ruling.