Supreme Court Will Decide Whether T
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Supreme Court Will Decide Whether T

Jun 11, 2023

The Supreme Court will consider whether trademarks can be granted that criticize public officials by name despite a federal law that says otherwise, the court announced Monday, as it took up a case involving the government's decision to reject a T-shirt trademark that mocks former President Donald Trump.

Mustn't trademark mockery of former President Donald Trump at Aberdeen Airport on May 1, in ... [+] Aberdeen, Scotland.

Vidal v. Elster concerns Steve Elster's attempt to trademark the phrase "Trump Too Small" for use on a T-shirt that criticizes Trump's political agenda, saying on the back of the shirt that "Trump's package is too small" on a variety of political issues like the environment, civil rights and "affordable healthcare for all."

The phrase references a comment Sen. Marco Rubio (R-Fla.) made during a presidential debate in 2016 in which he joked about the size of Trump's hands and added, "And you know what they say about guys with small hands."

The trademark was rejected for going against the Lanham Act, which prohibits trademarking anything that "consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent," or anything involving a deceased president without their widow's consent as long as they’re alive.

Elster argued that rejecting the trademark violated his First Amendment rights to free speech because it was criticizing a public official, and an appeals court agreed, finding the government's rejection unconstitutional and leading the government to bring the case to the Supreme Court.

The Supreme Court did not comment on its decision to take up the case, which asks the court to rule on whether the refusal to register trademarks involving living people or government officials violates the First Amendment "when the mark contains criticism of a government official or public figure."

The Supreme Court is wrapping up its current term and won't hear any more cases before it ends later this month, so the trademark dispute will be heard sometime during the court's next term, which begins in October. No date for the case's oral arguments has yet been set.

The Lanham Act's restrictions on trademarks for living people "is a condition on a government benefit, not a restriction on speech. And because it is a reasonable, viewpoint-neutral condition, it is consistent with the First Amendment," the government argued in its brief to the Supreme Court.

Elster did not want the Supreme Court to take up the case—which would have solidified the appeals court ruling in his favor—arguing in his brief to the court that the case is too narrow to justify the court taking up and it's a "poor vehicle" to issue a ruling that would affect other similar trademark disputes in the future. "Unlike other cases in which the Court has reviewed decisions declaring federal statutes unconstitutional, this case involves a one-off as-applied constitutional challenge—one that turns on the unique circumstances of the government's refusal to register a trademark that voices political criticism of a former President of the United States," Elster's attorneys wrote.

Elster first applied for his trademark in 2018, asking specifically to use the trademark for shirts. The government notes in its brief to the court that an examining attorney for the U.S. Patent and Trademark Office rejected it because "the use of the name ‘TRUMP’ in the proposed mark would be construed by the public as a reference to Donald Trump," which isn't allowed without Trump's written consent. An appeals board at the USPTO upheld that decision before Elster took the dispute to federal court. The case marks the latest in a series of First Amendment-related trademark disputes that have come before the Supreme Court. The court ruled in 2017 that a trademark statute that prohibited anything that "disparage[s]" people was unconstitutional, in a challenge brought by a band called "The Slants," and in 2019 the court struck down a different aspect of trademark law that barred "immoral" or "scandalous" materials. The court will also imminently rule in a case this term that concerns whether a dog toy parodying a Jack Daniels bottle violated federal trademark laws.

Prohibiting trademarks using other people's names — and hypothetical jurisdiction (SCOTUSblog)