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.
Elster challenged the USPTO’s decision, arguing that it violated his free speech rights and that the phrase was not intended to identify Trump, but rather to criticize him. He won at the U.S. Court of Appeals for the Federal Circuit, which ruled that the consent requirement was unconstitutional because it discriminated based on the content and viewpoint of the speech. The USPTO appealed to the Supreme Court, which heard oral arguments on November 1, 2023.
Based on the oral arguments, it seems that the Supreme Court is likely to rule against Elster and uphold the USPTO’s refusal to register his trademark. The justices appeared skeptical of Elster’s claim that his free speech rights were infringed by the denial of trademark registration. They pointed out that Elster could still use and sell his T-shirts with the phrase, even without a trademark. They also noted that trademarks are not meant to be vehicles for expressing opinions or ideas, but rather to serve as source identifiers for goods and services in the marketplace. As Justice Sonia Sotomayor said, “It doesn’t stop you from selling. It doesn’t stop you from selling anywhere as much as you want.”
The justices also seemed concerned that allowing Elster to trademark “Trump too small” without Trump’s consent would open the door for others to exploit or profit from someone else’s name, reputation, or likeness, which is not allowed in trademark law. As Justice Elena Kagan said, “The whole point of this provision is to prevent people from using somebody else’s name in order to make money off of it.” The justices also suggested that there was a long history and tradition of prohibiting trademarks that reference living individuals without their consent, and that there was no evidence that this practice violated the First Amendment.
The Supreme Court has not yet issued its ruling on this case, but based on the oral arguments, it seems likely that it will side with the USPTO and reject Elster’s trademark application. This would mean that Elster would not be able to claim exclusive rights to use “Trump too small” on his T-shirts or other products, and that he would not be able to prevent others from using the same phrase. However, this would not prevent him from continuing to express his political views or criticize Trump through other means.
We will continue to follow this case and how it will (or won’t) affect future trademark law.