The U.S. Supreme Court is set to delve into a case that puts the First Amendment under the microscope, all sparked by the Patent and Trademark Office’s (PTO) refusal to register a political slogan critical of former President Donald Trump.

The story began in 2017 when Steve Elster, a Democrat attorney from California with a penchant for political activism, sought to imprint the phrase “Trump Too Small” on T-shirts for sale.

This slogan stemmed from a 2016 debate exchange where Sen. Marco Rubio, R-Fla, made a crude remark about the size of Trump’s hands.

The roadblock came when the PTO denied Elster’s trademark application, with the backing of the Trademark and Trial Appeal Board, pointing to the lack of consent from Trump as the crux of the issue.

However, the tides turned favorably for Elster when a federal circuit court weighed in, stating that this trademark matter hits “the heart of the First Amendment,” and dismissed the notion of a governmental “interest in restricting speech critical of government officials or public figures in the trademark context.”

The Justice Department, advocating for Katherine Vidal, the under secretary of commerce for intellectual property, appealed the case to the Supreme Court.

Their argument revolves around the Lanham Act, a federal law designed to protect intellectual property in trademarks, asserting that it grants the PTO the constitutional authority to reject Elster’s trademark request.

In its petition to the high court, the Department of Justice claimed denying a trademark registration because it contains a name identifying a “particular living individual” without their “written consent,” doesn’t equate to stifling speech or administering punishment.

Fara Sunderji, a partner at the international law firm Dorsey & Whitney, shed light on the broader implications of the case, noting, “Despite outward appearances, this case is really not about Trump or the size of his policies or (body parts).”

Sunderji also pondered the ripple effects this decision could have on political commentary, particularly as the 2024 election candidates are gearing up.

She wondered aloud whether the USPTO will be besieged with trademark applications for every political phrase involving a candidate’s name in the 2024 race, or whether the public sphere will be awash with slogan-adorned T-shirts.

Either way, this will be a case to watch as the 2024 election season heats up.

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