The Supreme Court will hear a trademark dispute over the phrase “Trump too small,” which Senator Marco Rubio used to mock Donald J. Trump during the 2016 presidential campaign. Steve Elster, a lawyer from California, wants to trademark the phrase to express the idea that certain aspects of President Trump and his policies are inadequate. Elster plans to use the phrase on T-shirts, with the front displaying the slogan and the back listing Trump’s positions, particularly highlighting areas such as civil rights where Elster believes Trump fell short.
However, the Patent and Trademark Office rejected Elster’s trademark application, citing a federal law that prohibits registering trademarks that identify a living person without their written consent. In response, the U.S. Court of Appeals for the Federal Circuit ruled unanimously in favor of Elster, stating that the First Amendment protects political criticism, and the government has no interest in suppressing Elster’s speech.
The debate over the size of Trump’s hands has been a topic of discussion for years. In the 1980s, the satirical magazine Spy famously referred to Trump as a “short-fingered vulgarian.” During a presidential debate in 2016, Trump addressed the issue, defending the size of his hands and dismissing any implications about other aspects of his anatomy.
The Biden administration has appealed the Federal Circuit’s ruling to the Supreme Court, arguing that while Elster is free to discuss Trump’s physical appearance and policies, he is not entitled to a trademark for his expression. This case presents a significant First Amendment challenge, and the Supreme Court has previously struck down provisions of the trademark law based on free speech grounds.
In 2019, the Court rejected a provision that banned the registration of “immoral” or “scandalous” trademarks, highlighting that the government should not discriminate against certain ideas. Likewise, in 2017, the Court invalidated a provision that prohibited marks disparaging individuals, institutions, beliefs, or national symbols. Both cases upheld the principle that the government cannot favor or disfavor speech based on the expressed viewpoint.
The ongoing case, Vidal v. Elster, No. 22-704, introduces a unique aspect as the provision in question does not appear to make distinctions based on viewpoints. However, Elster argues in his Supreme Court brief that the statute effectively makes it extremely difficult to register a mark expressing an opinion about a public figure, including critical political messages about the President of the United States.
The Supreme Court’s ruling, in this case, will have broad implications for the intersection of trademarks and political criticism. It will determine whether individuals have the right to trademark expressions that convey their political opinions, even when they involve public figures. The outcome will establish significant precedents for future disputes, defining the boundaries of free speech in trademark law.