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Supreme Court Deliberates on “Trump Too Small” Trademark Case

trump too small trademark case

In a case that has captured national attention, the Supreme Court on Wednesday delved into the contentious matter surrounding a California man’s attempt to trademark the phrase “Trump too small”. The phrase, coined by California-based attorney Steve Elster, has been at the center of a legal battle since 2018.

Elster, who sought to use the slogan on T-shirts mocking former President Donald Trump, found his trademark application rejected under a provision of federal trademark law. This provision prohibits the registration of marks that mention a living person’s name without their consent.

“Since 2018, California-based attorney Steve Elster has been attempting to trademark the slogan to use on shirts he sells mocking Trump in reference to an infamous 2016 debate moment,” the case documents reveal.

During the arguments, Justice Neil Gorsuch highlighted the long-standing tradition of such prohibition. He stated, “At the end of the day, it’s pretty hard to argue that a tradition that’s been around a long, long time since the founding — common-law type stuff — is inconsistent with the First Amendment.”

The slogan refers to a 2016 Republican presidential debate moment when Trump defended his hand size after Sen. Marco Rubio made a jesting remark. Trump responded during the debate, “He referred to my hands, ‘If they are small, something else must be small.’ I guarantee you there is no problem. I guarantee.”

The justices, while not frequently mentioning Trump by name, delved into the First Amendment implications of the case. Justice Amy Coney Barrett pondered on the potential impact on copyright law, crafting a hypothetical scenario involving an author trying to copyright a book titled “Trump Too Small”.

The Justice Department posits that the provision in question is viewpoint-neutral and should be treated as a condition on a government benefit, not a restriction on speech. “Section 1052(c) imposes a condition on a federal benefit, not a restriction on speech. Even if Mr. Elster cannot register the mark ‘Trump too small,’ he can sell shirts with that slogan,” Deputy U.S. Solicitor General Malcolm Stewart told the justices.

However, Jonathan Taylor, Elster’s attorney, contested this viewpoint, arguing that the provision should be seen as a content-based and speaker-based restriction on speech. “The sole interest that it sought to serve was protecting the feelings of famous people, but that is not a legitimate reason to burden protected speech,” Taylor said.

Justice Elena Kagan expressed skepticism towards allowing the trademark, while Justice Samuel Alito clarified his stance to Stewart, indicating that he wouldn’t uphold the provision under the government’s theory.

The case continues to unfold as the Supreme Court weighs the arguments presented, with the decision set to have far-reaching implications on trademark law and free speech.

FAQs on the “Trump Too Small” Trademark Case

What is the “Trump too small” trademark case about?

The case revolves around a California-based attorney, Steve Elster, who has been attempting to trademark the phrase “Trump too small” since 2018. The phrase is used on T-shirts mocking former President Donald Trump and references a moment from a 2016 Republican primary debate.

Why was the trademark application for “Trump too small” rejected?

The U.S. Patent and Trademark Office (USPTO) rejected Elster’s application under a provision of federal trademark law that prohibits registering marks mentioning a living person’s name without their consent.

What are the First Amendment implications of the “Trump too small” case?

The case explores whether refusing to register a trademark that criticizes a government official or public figure violates free speech rights. Elster’s lawyers argue that withholding a trademark burdens free speech by denying the legal protections that come with a registered trademark.

How have the Supreme Court justices responded to the arguments?

During the oral arguments, several justices seemed inclined to side with the Biden Justice Department in rejecting the trademark application. Some justices questioned whether the trademark is meant to protect Elster’s speech or his business interests, while others discussed the long-standing tradition of such prohibition.

What could be the potential impact of the Supreme Court’s decision?

The decision could set a precedent regarding the First Amendment’s role in federal trademark law. It may influence how trademarks that mention living individuals are treated and could potentially impact the balance between free speech and trademark protections.

Has there been a similar case to “Trump Too Small” in the past?

The Supreme Court has previously struck down federal trademark restrictions on free speech grounds, but those cases involved provisions that discriminated against speakers’ viewpoints. The “Trump too small” case is distinct as the Justice Department argues that the provision at issue is viewpoint-neutral.

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