A ban on trademarks that identify living individuals without consent faced skepticism during oral arguments as the Federal Circuit weighed reviving an application to register “Trump Too Small.”
Attorney Steve Elster argued the registration ban should at least be limited because it discriminated based on viewpoint, like a pair of bans recently struck down by the Surpeme Court.
The U.S. Patent and Trademark Office argued that unlike the unconstitutional bans on disparaging and vulgar marks, this one didn’t discriminate based on viewpoint and instead blocked use of any identity in a mark without consent, akin to publicity rights protections common ...