‘Trump Too Small’ Trademark Hits Resistance at Supreme Court (1)

US Supreme Court justices suggested they will rule against a man who says he has a First Amendment right to seek federal trademark protection for the mocking phrase “Trump too small.”

Hearing arguments in Washington Wednesday, the court voiced skepticism toward Steve Elster’s contention that the US government violated his constitutional rights when it refused to let him place the phrase on a federal trademark registry. Elster says he wants to use “Trump too small” on T-shirts.

Federal registration gives trademark owners protections on top of those they already have under state law. Registration can confer exclusive rights in locations where no one was already using the name or image, help owners win lawsuits and put would-be competitors on notice that a trademark is legally protected.

“You’re not talking about stopping the speech,” Justice Sonia Sotomayor told Elster’s lawyer. “You’re talking about not receiving government protection for activity that you would like to heighten protection for. It doesn’t stop you from selling.”

The disputed phrase alludes to a discussion during a 2016 Republican presidential debate over the size of then-candidate Donald Trump’s hands — and, by implication, his manhood.

The case is putting President Joe Biden’s administration in the unusual position of arguing against an effort to make fun of his potential reelection opponent. The administration’s position adheres to the traditional Justice Department practice of defending the constitutionality of federal statutes when possible.

The case centers on a decades-old legal provision that bars registration of trademarks that identify a living person without that individual’s consent. A federal appeals court said the provision violates the First Amendment when the trademark includes criticism of a government official or public figure.

Elster’s lawyer, Jonathan Taylor, said the provision was aimed at “protecting the feelings of public figures” and imposed “a substantial burden on speech.”

More Trump Slogans

But Chief Justice John Roberts said Taylor’s position would have the effect of restricting speech, preventing other people from using the slogan.

“Presumably, there’ll be a race for people to trademark, you know, ‘Trump too this,’ ‘Trump too that,’ whatever,” Roberts said. “And then particularly in an area of political expression that really cuts off a lot of expression.”

Justice Ketanji Brown Jackson suggested Taylor’s argument was missing the point of trademark law.

“Trademark is not about expression,” Jackson said. “Trademark is not about the First Amendment in people’s ability to speak. Trademark is about source-identifying and preventing consumer confusion.”

And Justice Neil Gorsuch said trademark law has always had exceptions, precluding protection for geographic names and descriptions of things.

“It’s pretty hard to argue that a tradition that’s been around a long, long time, since the founding, common-law type stuff, is inconsistent with the First Amendment,” he said.

Elster filed his registration application with the US Patent and Trademark Office in 2018, while Trump was still president. The office rejected the application in 2019, and the Biden administration eventually inherited the legal fight.

The case, which the court is scheduled to resolve by June, is Vidal v. Elster, 22-704.

(Updates with details of arguments.)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

© 2023 Bloomberg L.P. All rights reserved. Used with permission.