The Supreme Court appears ready to deny the registration of a trademark for T-shirts with the phrase "Trump Too Small."

  • Politics
  • Sunday, 05 November 2023 15:14

Donald Trump finally made it to the Supreme Court on Wednesday, indirectly. He wasn't a plaintiff, defendant, or target. But his name and image were at issue.

The case dates back to the 2016 presidential primaries when Senator Marco Rubio mocked candidate Trump as a man with "small hands."

"He hit my hands," Trump shot back. "Look at those hands, are they small hands? And: "If they're small, something else must be small. I guarantee you, there's no problem." he said with a knowing smirk.

The Supreme Court closed the door on Texas' lawsuit seeking to overturn the election ELECTIONS The Supreme Court closed the door on Texas' lawsuit seeking to overturn the election Two years later, Democratic activist Steve Elster applied to register the trademark "TRUMP TOO SMALL" for use on T-shirts. The U.S. Patent and Trademark Office rejected the proposed mark, citing federal law that bars registration of a living person's name as a trademark without their consent. The trademark office said nothing prevented Elster or anyone else from using the phrase, but without a trademark.

The U.S. Court of Appeals for the Federal Circuit disagreed, finding that the refusal to register the trademark violated Elster's free speech rights.

However, that argument found little support in the Supreme Court on Wednesday.

"The question is, is this a free speech violation? And the answer is no," Justice Sonia Sotomayor said. "He can sell as many [shirts with 'Trump Too Small'] as he wants."

Justice Clarence Thomas expressed a similar view, questioning Elster's attorney Jonathan Taylor, who conceded that without a trademark, his client could still produce and sell as many shirts or mugs as he wanted with the "Trump Too Small" logo.

"So," Thomas asked, "what speech is actually burdened?"

Taylor replied that Elster was being denied "important rights and benefits" that are "usually available to all trademark owners who pay a registration fee," and he was being denied that "only because his mark expresses a message about a public figure."

In other words, the refusal to grant the trademark means Elster can't charge others for using the "Trump Too Small" phrase.

That prompted Justice Elena Kagan to note that the court has repeatedly said that "until your viewpoint is justified, the government ... can give benefits to one and not to another."

Justice Neil Gorsuch chimed in, saying, "there have always been some content restrictions on trademarks." Justice Brett Kavanaugh agreed, saying Congress deemed it appropriate to impose a restriction on people who profit from commercial appropriation of another person's name.

And Justice Ketanji Brown Jackson added that a trademark is not linked to the First Amendment. It's about "source identification and preventing consumer confusion."

And, finally, Chief Justice John Roberts posed this question: "What do you do with the government's argument that you are undermining First Amendment values because the whole point of a trademark, of course, is to prevent other people from doing the same thing?"

If you win a trademark for the "Trump Too Small" slogan, other people won't be able to use it, correct?

If that is indeed a problem, Taylor replied, Congress can address it. But he didn't say how.

So, the upshot at the end of Wednesday's argument? Yes, Virginia, there are some things the Supreme Court apparently agrees on.