Justices’ Trademark Consensus Belies Constitutional Rift (1)

The US Supreme Court’s Thursday decision blocking registration of a “Trump Too Small” trademark turned into a proxy fight over the justices’ methodology, with nods to hotter-button issues such as firearms and abortion.

All nine justices agreed that the “names clause” in the Lanham Act—which bans registering trademarks that reference living individuals without consent—doesn’t violate the First Amendment. Unlike provisions struck by the high court in 2017 and 2019, the clause passes muster as viewpoint-neutral, the justices agreed. While it is a content-based restriction, such limits are inherent to trademark law and don’t necessarily burden free speech impermissibly.

But multiple ...