Supreme Court Blocks Trademark for ‘Trump Too Small’ T-Shirts Criticizing Former President

Supreme Court rejects ‘Trump Too Small’ trademark

In a landmark decision, the U.S. Supreme Court has once again made headlines with a ruling involving former President Donald Trump. The court unanimously decided that the U.S. Patent and Trademark Office correctly refused to grant a trademark for the phrase “TRUMP TOO SMALL,” a slogan popularized during the 2016 Republican presidential debates. This decision not only underscores the legal complexities surrounding trademark law but also highlights the ongoing tension between free speech and individual rights in the commercial arena. As we delve into the details of this case, it becomes evident that the ruling carries significant implications for both trademark registration and the broader landscape of political expression in America.

Supreme Court rejects ‘Trump Too Small’ trademark
Supreme Court rejects ‘Trump Too Small’ trademark

A Landmark Decision in Trademark Law

In yet another case involving former President Donald Trump, the U.S. Supreme Court ruled on Thursday that the U.S. Patent and Trademark Office correctly refused to grant a trademark for the phrase “TRUMP TOO SMALL.” The unanimous decision highlighted that, under federal law, trademarks may not be granted involving the names of living individuals without their written consent.

Justice Clarence Thomas, writing for the court, emphasized the longstanding legal principle that trademarks containing names can be restricted. “Our courts have long recognized that trademarks containing names may be restricted. And these name restrictions served established principles,” Thomas noted. “This history and tradition is sufficient to conclude that the names clause — a content-based, but viewpoint-neutral, trademark restriction — is compatible with the First Amendment.” This ruling marks a significant precedent in maintaining the balance between trademark law and free speech.

The Case of Steve Elster

The decision was a loss for Steve Elster, a part-time Democratic activist and employment lawyer. Elster had argued that the living-person exception to the trademark law violated his right to free speech by treating speech about Trump differently from other speech that could be trademarked. However, the court rejected his argument, emphasizing that living individuals have certain rights to prevent their names from being branded without their permission, even in the political arena.

Elster applied to register “TRUMP TOO SMALL” with the trademark office in 2018, intending to use the slogan on T-shirts. The phrase gained notoriety from the 2016 Republican presidential debates when Sen. Marco Rubio made a joke about the size of Trump’s hands. Despite the ruling, Elster can still market his T-shirts without trademark protection. The court’s decision underscores the importance of the Lanham Act, which has governed trademark registration for decades and maintains the “living-individual rule.”

Implications for Free Speech and Commerce

The Supreme Court’s ruling has broader implications for free speech and commerce. The Lanham Act’s “living-individual rule” harmonizes trademark law with the right of publicity and privacy, preventing unauthorized use of individuals’ names in commercial contexts. Proponents of the law, including the International Trademark Association, argue that it protects individuals’ rights while facilitating freedom of expression by keeping politically charged phrases in the public domain.

Public Citizen, an advocacy group, contends that disallowing trademark registration for such phrases ensures that these expressions remain accessible to the public rather than granting exclusive rights to individuals. For most consumers, the ruling will have little practical impact. The law does not prevent the use of a living person’s name; it only bars trademark protection for products using those names without consent. This was evident in the vast array of merchandise featuring Justice Ruth Bader Ginsburg’s image and sayings while she was alive, which were sold without her permission and without trademark protection.

Conclusion

The Supreme Court’s decision to block the trademark for “TRUMP TOO SMALL” T-shirts reinforces the balance between trademark law and free speech. While Steve Elster may not have succeeded in obtaining trademark protection, he retains the ability to market his T-shirts, ensuring that politically charged speech remains in the public domain. This ruling highlights the ongoing tension between commercial interests and individual rights, providing a clear precedent for future cases involving the intersection of trademark law and free speech.

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