By Blake Brittain
WASHINGTON (Reuters) – “Trump Too Small” – a phrase mocking former President Donald Trump that a California lawyer intended to slap on T-shirts – has now become the focal point of another heated U.S. Supreme Court battle. This case delves into the intersection of trademark law and free speech rights, and the justices are scheduled to hear arguments on Wednesday regarding the U.S. Patent and Trademark Office’s appeal of a lower court’s decision. The decision reversed the agency’s initial denial of attorney Steve Elster’s 2018 trademark application for “Trump Too Small.” The primary issue for consideration is whether the First Amendment’s free speech protections for criticisms against public figures outweigh the agency’s concerns over Trump’s rights, as determined by the lower court.
In its bid to safeguard Trump from having his name misappropriated in commerce, the Biden administration is seeking to uphold a 1946 federal law that prohibits the use of a person’s name in trademarks without their consent. It is crucial to note that Trump is not personally involved in the case. Elster has argued that a ruling in favor of the government would grant politicians unwarranted control over speech regarding them. In contrast, the agency contends that trademarks like Elster’s could impede the free speech of others on political matters since they grant exclusive legal ownership of specific words to particular individuals.
Trademarks serve to protect identifying features of goods, such as brand names, logos, and advertising slogans. Interestingly, the Supreme Court has recently invalidated two trademark laws based on concerns surrounding free speech. It ruled in favor of the Asian-American rock band The Slants in 2017, who had faced a ban on trademarks deemed “disparaging.” Additionally, in 2019, the Court sided with artist Erik Brunetti, who challenged a prohibition on “immoral” or “scandalous” marks in relation to his “FUCT” brand.
Elster, inspired by an exchange between Trump and Senator Marco Rubio during a March 2016 Republican presidential candidate debate, applied for the “Trump Too Small” trademark to use on T-shirts. Trump had previously attempted to belittle Rubio by dubbing him “Little Marco.” In response, Rubio retaliated at a campaign rally by raising concerns about Trump’s disproportionately small hands. Trump, defending himself at the debate, famously remarked, “Look at those hands. Are they small hands? If they’re small, something else must be small. I guarantee you, there’s no problem. I guarantee it.”
Elster argues that his trademark utilizes a double meaning to criticize Trump while expressing his views on “the smallness of Donald Trump’s overall approach to governing.” It should be noted that Trump held presidential office at the time of Elster’s application. The agency initially rejected the application based on the 1946 law, but later reversed their decision after the U.S. Court of Appeals for the Federal Circuit intervened.
Biden’s administration, represented by U.S. Solicitor General Elizabeth Prelogar, has claimed that the 1946 law differs from the two previously invalidated laws as it does not curb speech based on an applicant’s viewpoint. According to the trademark office, this law aims to prevent individuals’ names from being exploited for another person’s commercial gain. It has been used to reject trademarks with positive, neutral, and critical connotations alike. Jonathan Moskin, a partner at law firm Foley & Lardner, supports the agency’s stance and stated that granting Elster a trademark registration would not enhance his right to speak. Moskin also points out that Elster can use his slogan freely, whether or not he obtains registration.
Moskin believes that a Supreme Court trademark decision from June may have reeled back the precedents set in the Slants and Brunetti cases. In that particular ruling, the Court sided with Jack Daniel’s in a dispute over dog toys that mimicked their iconic whiskey bottles.
In his court brief, Elster contends that the 1946 law “effectively precludes the registration of any mark that criticizes public figures – even as it allows them to register their own positive messages about themselves.” Elster highlights the fact that marks such as “Joe 2020” and “Hillary For America” were registered, whereas “No Joe in 2024” and “Hillary for Prison 2016” were rejected under this very law.
Samuel Ernst, a professor at Golden Gate University School of Law who supports Elster, argues that a win for the government would permit politicians to impose a “heckler’s veto” and prevent the registration of trademarks critical of them. Ernst further asserts that the law in question fails to advance the overarching goal of trademark law, which is to prevent confusion in the marketplace. “Nobody would be confused into believing that Donald Trump is selling T-shirts accusing him of being too small,” says Ernst.
(Reporting by Blake Brittain in Washington; Editing by Will Dunham)
