On Thursday, the Supreme Court rejected a California lawyer’s claim that he could trademark “Trump Too Small” for use on T-shirts. Is this solely to humiliate former US President Donald Trump?
Earlier this week, the Biden administration requested the justices uphold the US Patent and Trademark Office's (USPTO) denial of attorney Steve Elster's trademark application. The USPTO had refused the application on the grounds that federal law prohibits trademarks using a person’s name without their consent.
Justice Clarence Thomas wrote, “We conclude that a tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fits within that tradition.”
“Though the particulars of the doctrine have shifted over time, the consistent through line is that a person generally had a claim only to his own name.”
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Supreme Court supports USPTO in rejecting 'Trump Too Small' trademark
This Supreme Court decision overturned a previous unanimous precedent by the US Court of Appeals for the Federal Circuit. In 2022, the panel had decided that the prohibition on violating a person’s privacy was outweighed by Elster’s First Amendment right to criticize public officials. During the oral argument for Vidal v. Elster in November, Chief Justice John G. Roberts Jr. expressed concerns that ruling in favour of Elster could complicate the creation of similar satirical or critical content about Trump.
{{/usCountry}}This Supreme Court decision overturned a previous unanimous precedent by the US Court of Appeals for the Federal Circuit. In 2022, the panel had decided that the prohibition on violating a person’s privacy was outweighed by Elster’s First Amendment right to criticize public officials. During the oral argument for Vidal v. Elster in November, Chief Justice John G. Roberts Jr. expressed concerns that ruling in favour of Elster could complicate the creation of similar satirical or critical content about Trump.
{{/usCountry}}Elster's idea for a “Trump Too Small” T-shirt originated from locker-room taunts in 2016 between Trump and Senator Marco Rubio during their rivalry for the Republican presidential nomination. Tired of being dismissed as “Little Marco” by Trump, Rubio made a jab at the size of Trump's hands during a campaign event, saying, “You know what they say about men with small hands… You can’t trust ’em.”
Trump responded, “Look at those hands, are they small hands? And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”
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Solicitor General Elizabeth B. Prelogar argued before the court that while Elster is free to use the phrase “Trump Too Small” however he wishes, the government is not obligated to provide the protections associated with trademark registrations.
“Living people have a valuable right to their own names,” Prelogar noted, adding that Elster’s “unquestioned First Amendment right to criticize the former President does not entitle him to enhanced mechanisms for enforcing property rights in another person’s name.”