Supreme Court to Decide If Insult Against Trump Can Be Trademarked

Supreme Court to Decide If Insult Against Trump Can Be Trademarked
Republican presidential candidates Donald Trump, right, and Sen. Marco Rubio (R-Fla.) speak during a break in a presidential debate in Coral Gables, Fla., on March 10, 2016. (AP Photo/Wilfredo Lee)
Matthew Vadum

The Supreme Court decided on June 5 to consider whether a progressive activist can trademark a belittling phrase targeting former President Donald Trump for use on T-shirts.

The ruling puts the administration of President Joe Biden, a Democrat, in the unusual position of defending the interests of Trump, who's again seeking the Republican Party’s presidential nomination for 2024. Biden has said that he'll seek reelection in 2024.

The expression “Trump Too Small” was inspired by a crude joke that Sen. Marco Rubio (R-Fla.) made during the 2016 Republican presidential primary season. Then-presidential candidate Rubio mocked fellow candidate Trump by saying he had “small hands.”

Rubio told supporters that Trump was “always calling me ‘little Marco.’”

“He is taller than me, he’s like 6-foot-2, which is why I don’t understand why his hands are the size of someone who is 5-foot-2,” Rubio said at the time. “Have you seen his hands? And you know what they say about men with small hands.”

The U.S. Court of Appeals for the Federal Circuit ruled in August 2022 that the U.S. Patent and Trademark Office (USPTO) was wrong to deny the trademark application of progressive activist and lawyer Steve Elster for “Trump Too Small.”

A USPTO examining attorney refused registration under the Lanham Act, finding that “the use of the name ‘TRUMP’ in the proposed mark would be construed by the public as a reference to Donald Trump.” The official found that under the intellectual property statute, his office couldn't register trademarks that include the name of a living person without that person’s written consent.

The USPTO’s Trademark Trial and Appeal Board upheld the examining attorney’s ruling.

Elster said he filed his 2018 trademark application because he wanted to communicate that “some features of President Trump and his policies are diminutive” and because he planned to put the phrase on T-shirts, along with the phrase “Trump’s package is too small” on the back of the shirts, accompanied by examples of policy areas that supposedly matched the characterization.

Elster claims that the USPTO violated his free speech rights under the First Amendment.

The appeals court agreed with Elster, finding the denial of the trademark application “unconstitutionally restricts free speech in violation of the First Amendment,” U.S. Solicitor General Elizabeth Prelogar noted in the petition (pdf) filed with the Supreme Court.

The appeals court found that the “content-based restriction” imposed by the USPTO didn't survive constitutional scrutiny “because the government does not have a privacy or publicity interest in restricting speech critical of government officials or public figures in the trademark context—at least absent actual malice, which is not alleged here.”

In her petition, Prelogar urged the Supreme Court to take up the case because “[for] more than 75 years, Congress has directed the USPTO to refuse the registration of trademarks that use the name of a particular living individual without his written consent.”

The appeals court decision holding that the refusal to register the trademark violates the First Amendment is “incorrect, and this Court usually grants review when a court of appeals has invalidated the application of a federal statute.”

The case, Vidal v. Elster (court file 22-704), is expected to be heard in the Supreme Court’s new term that begins in October. For the court to grant a petition, at least four of the nine justices must vote to hear the case. As is its usual custom, the court didn't explain why it granted the petition.

Katherine Vidal is undersecretary of commerce for intellectual property and director of the USPTO.

The Supreme Court issued a ruling four years ago in favor of free speech rights in the area of trademark law.

The court struck down part of the Lanham Act in June 2019, finding that a ban preventing “immoral” or “scandalous” words and symbols from being trademarked ran afoul of the First Amendment.

The USPTO had rejected a trademark application by clothesmaker and artist Erik Brunetti for an acronym that he has said stands for “Friends U Can’t Trust.” The designs include shirts, hoodies, and jackets.

Although Brunetti, who said he sought the trademark so he could pursue copycats and counterfeiters more easily, insists that the word is to be pronounced letter by letter, people commonly pronounce it as if it were the equivalent of a past participle form of a well-known vulgarity.

In a concurring opinion in the case, Iancu v. Brunetti, Justice Samuel Alito argued that the nation’s highest court wasn’t embracing nihilism.

“Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends," Alito wrote. "Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.”

The Supreme Court also ruled in Matal v. Tam in 2017 that an Asian American band called The Slants couldn’t be refused trademark protection because its name is viewed as racially disparaging. The band argued that it used the name to reclaim a racial slur.

Trump’s office didn't respond by press time to a request by The Epoch Times for comment. Elster’s attorney, Jonathan Ellis Taylor of Gupta Wessler in Washington, and the U.S. Department of Justice, which is representing Vidal and the USPTO, also didn't respond as of press time.