The Supreme Court and the “Trump Too Small” Trademark Dispute

The Supreme Court is currently considering a case that involves a phrase mocking former President Donald Trump as “too small”. The phrase, which was coined by a California lawyer and activist named Steve Elster, is a reference to a crude joke that Senator Marco Rubio made about Trump’s hand size and implied genitalia during the 2016 presidential campaign. Elster applied to register “Trump too small” as a trademark for his T-shirts, but the U.S. Patent and Trademark Office (USPTO) rejected his application, citing a law that requires the written consent of a living individual whose name, portrait, or signature is used in a trademark.

The Supreme Court Limits the Foreign Reach of U.S. Trademark Law

On June 29, 2023, the Supreme Court of the United States issued a landmark decision in Abitron Austria GMBH et al. v. Hetronic International, Inc., a case that involved a trademark dispute between a U.S. company and six foreign parties over the use of the Hetronic mark on remote controls for construction equipment. The Court held that the Lanham Act, the comprehensive trademark statute in the United States, does not apply extraterritorially and extends only to claims where the infringing use in commerce is domestic. The Court vacated and remanded the judgment of the Tenth Circuit, which had affirmed a jury award of approximately $96 million in damages and a worldwide injunction against the foreign parties for their global employment of the Hetronic mark.

Jack Daniel’s vs Bad Spaniels – What the Supreme Court Ruled

On June 8, 2023, the Supreme Court of the United States (SCOTUS) issued its decision in Jack Daniel's Properties, Inc. v. VIP Products LLC, a case involving a dog toy that parodied the famous whiskey brand. The Court vacated the Ninth Circuit's ruling that applied a special test for trademark infringement claims involving "expressive works" and remanded the case for further proceedings. The Court held that the Lanham Act's standard test for likelihood of confusion applies to all trademark infringement claims, regardless of whether the defendant's use of the mark is expressive or not. However, the Court also recognized that the First Amendment may limit the scope of trademark protection in some cases, and instructed the lower courts to consider relevant constitutional principles when applying the likelihood of confusion test. In this blog, we will discuss the general facts in this case, how the lower, 9th circuit court ruled, get into the SCOTUS ruling, and finally discuss what this might mean moving forward with trademark law.

Supreme Court Rules Against Andy Warhol Foundation in Prince Image Case

On Thursday, May 18, 2023, the Supreme Court delivered a landmark ruling in a copyright dispute between the Andy Warhol Foundation and rock-and-roll photographer Lynn Goldsmith. The case involved a series of silkscreen images that Warhol created based on a 1981 photo of Prince that Goldsmith took for Newsweek magazine. The court ruled 7-2 that Warhol infringed on Goldsmith’s copyright when he used her photo as the source material for his artworks.