A man challenging a federal trademark law cannot trademark the phrase “Trump Too Small,” the Supreme Court ruled Friday, arguing that a phrase that names a public official cannot be trademarked just because it’s criticizing them.
Then-Republican presidential candidates Sen. Marco Rubio, R-Fla, and Donald Trump at the Republican ... [+]
The high court ruled unanimously in favor of the federal government, which rejected Steve Elster’s attempt to trademark the phrase “Trump Too Small.”
The phrase was used on a T-shirt criticizing Trump’s political agenda, which proclaims “Trump’s package is too small”—referencing a comment Sen. Marco Rubio (R-Fla.) made during a 2016 presidential debate, in which he joked about the size of Trump’s hands and added, “And you know what they say about guys with small hands.”
Under federal law, trademarks are prohibited for anything that “consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.”
Elster argued that law violates his First Amendment rights, arguing trademarks using the names should be allowed in cases that criticize public officials.
Justices ruled the federal law doesn’t violate the First Amendment, with Justice Clarence Thomas writing for the court that barring trademarks on other people’s names is a longstanding practice that protects that person’s “reputation and goodwill,” and “a party has no First Amendment right to piggyback off the goodwill another entity has built in its name.”
Justice Sonia Sotomayor wrote a concurring opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson, that disagreed with the conservative justices relying on longstanding historical precedent to reach their decision, but still agreed Elster lacked a First Amendment right to trademark “Trump Too Small.”
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Thomas noted in his opinion Thursday that the court’s ruling applies narrowly to the specifics of this case, and “does not set forth a comprehensive framework for judging whether all content-based but viewpoint-neutral trademark restrictions are constitutional.”
The Lanham Act, which includes the prohibition on living individuals’ names, also prohibits trademarking anything naming a president after they’re deceased, unless the person seeking the trademark gets the approval of the president’s widow (as long as that widow is still alive). That means “Trump Too Small” could not be trademarked even after Trump’s passing, unless Melania Trump gave permission.
The federal government went to the Supreme Court in the “Trump Too Small” case after a lower court ruled in Elster’s favor and allowed the trademark. The Supreme Court has decided a series of trademark disputes in recent years, including allowing a trademark by a band called “The Slants” in 2017, striking down a federal statute that prohibited trademarks of anything that “disparage[s]” people. Justices struck down a different aspect of trademark law in 2019 that barred “immoral” or “scandalous” materials, and last year ruled against a dog toy that parodied a bottle of Jack Daniels whiskey. (The toy, shaped like a bottle of Jack Daniels, was labeled “Bad Spaniels.”)