The Supreme Court is poised to rule against activists who want to trademark ‘Trump is too small’


A political activist’s desire to record a suggestive phrase targeting Donald Trump’s anatomy and policies Center of the Supreme Court case It asked on Wednesday that it was testing the limits First Amendment.

Trump is not a party to the case, but his name was thrown around frequently during oral arguments as Justice Steve Elster weighed in on a federal trademark law barring him from registering “Trump Too Small” as a slogan for T-shirts without the former president’s T-shirts. Express permission runs counter to the First Amendment.

A majority of justices tended to uphold the US Patent and Trademark Office’s decision to deny Elster’s trademark.

“Question: Does it violate speech? And the answer is no,” Justice Sonia Sotomayor said at one point. “The government didn’t tell him how many shirts he could sell with the phrase on it, and that he couldn’t use the phrase and sell it wherever he wanted. There is no restriction on selling it. So there is no breach of tradition.

“There is certainly a rational basis for the government’s actions,” he added.

Concurring, Judge Clarence Thomas stressed to an attorney representing Elster how his client’s speech is regulated by the USPTO.

“If your argument is that somehow your speech is hindered, I think it’s better to know exactly how it’s hindered or burdened,” Thomas said.

Meanwhile, Chief Justice John Roberts raised concerns about how a ruling in Elster’s favor would actually limit the First Amendment rights of others.

“Presumably there will be a competition for people to trademark, you know, ‘Trump do this,’ ‘Trump do that,’ whatever,” Roberts said. “And then, especially in an area of ​​political expression, it really cuts off a lot of expression that you can have — what other people might see as an important violation of their First Amendment rights.”

The topic may seem a bit vague for the high court, but justices in recent years have touted various parts of trademark law — known as the Lanham Act — in favor of more free-speech protections. Controversial Trademarks. On one occasion, They threw out a provision of the law that prohibited the registration of “indecent” or “defamatory” trademarks. in another They ruled that a section of the law denying trademark protection to disparaging marks was unconstitutional.

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Some justices on Wednesday pointed to the history surrounding trademark law in the United States, including Justice Neil Gorsuch, who said, “It’s very difficult to argue that a tradition that has been around for a long, long time, since its inception…is inconsistent with the First Amendment.”

Judges hearing the case on Wednesday kept it clean and raised presumptions against both attorneys. One such example of Justice Amy Coney Barrett called out the former president directly when she wondered how it might affect copyright law.

“Let’s imagine that there is a similar restriction on copyright, and someone wants to write a book called ‘Trump Too Small’ that chronicles Trump’s mediocrity over the years and argues that he is not a fit public official,” he said. A court must decide whether that “copyright restriction is permissible.”

During the 2016 Republican presidential primary, Trump and Florida GOP Sen. The case can be seen in a memorable spat between Marco Rubio, in which the senator joked about the size of Trump’s hands before the debate, saying, “You know what they are. Tell me about men with small hands.”

Trump backtracked during the show, holding out his arms for the audience to see and insisting that Rubio’s suggestion that “something else be small” was misguided.

“I guarantee you there will be no problem,” Trump said during the debate.

Several headlines followed, including one from CNN, “Donald Trump Defends His Penis Size” And another from Vanity Fair said: “Donald Trump assures America that he is well-off.”

Two years later, Elster tried to trademark Trump Too Small for use on T-shirts. He said in his registration request that the proposed trademark is intended to “signify certain aspects of President Trump and his policies that are minor.”

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“It sparked a widely publicized exchange from the 2016 Republican primary debate in which Trump commented on his anatomy, using a double entendre to criticize Trump while expressing Elster’s view of ‘the pettiness of Donald Trump’s approach to governing as president of the United States,'” Elster’s attorneys told the judge in court documents. said.

The US Patent and Trademark Office refused registration because the use of the name “Trump” would be construed by the public as a reference to the former president, and without Trump’s consent, registration would have to be refused under the Lanham Act.

Elster appealed to the USPTO’s Trademark Trial and Appeal Board, which ultimately denied registration. However, a federal appeals court later held that the denial violated Elster’s First Amendment rights.

The USPTO, represented by the Justice Department, appealed to the Supreme Court, and the justices now have to decide whether such a refusal violates the Constitution, “when the reference involves criticism of a government official or public figure.”

Justice Department says The disclaimer does not limit Elster’s speech, but instead conditions the benefits that come from successfully registering a trademark pursuant to the Lanham Act.

“Commercial actors who use marks that incorporate another person’s name without that person’s consent,” Solicitor General Elizabeth Preloger argued in court documents, “are thereby exploiting something that does not belong to them for their own commercial benefit.”

The DOJ, in theory, urges judges to examine the statutory provision at issue under a standard of review, making it easier to uphold the provision.

Elster’s lawyers, however, argue that the provision restricts speech based on the content of the speech and should therefore be subjected to the highest standard of review that judges use when looking at free speech issues.

“This provision effectively prevents the recording of all marks that disparage or criticize living people, since no one would consent to the recording of speech that disparages them,” they wrote. “By compelling approval, the clause gives public figures in essence a ‘heckler’s veto’—the absolute right to decide whether speech about them can be registered as a trademark.”

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Vidal v. The Elster case, they said, “demonstrates the clause’s inappropriateness with any anti-fraud interest.”

“The phrase “Trump is too small” and the accompanying gesture so trivialize Trump that no reasonable person would mistake it for a message that he personally endorses,” they told the judges.

Trump did not weigh in on the case in a friend-of-the-court brief.

Legal experts say the justices could use the controversy to make a more sweeping ruling about the role of the First Amendment in federal trademark law, but like Roberts, insist that such a ruling in Elster’s favor could have an unintended consequence in that area. Law.

“If this case finds this section of the Lanham Act unconstitutional on free speech grounds, it will actually have the boomerang effect of allowing the owner of this exclusive right to restrict the free speech of others,” said Maya Darr of New York. based trademark attorney.

In two recent cases, the Court strengthened First Amendment protections when it refused to uphold the USPTO’s decisions to deny trademark registrations based on other parts of the Lanham Act.

In 2017, a court ruled in favor of Asian American musician and political activist Simon Tam, who named his rock band “The Slands” in an attempt to reclaim a term once used as an insult. He tried to register the name with the trademark office, but was rejected on the grounds that it disparaged “people of Asian descent”.

Two years later, justices struck down a provision of the Lanham Act that barred the agency from registering “indecent” or “defamatory” trademarks, allowing the fashion designer to apply for a trademark called FUCT for her clothing line.

This story was updated with additional updates on Wednesday.

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