WASHINGTON — The Supreme Court on Thursday rejected a California lawyer’s attempt to trademark the phrase “Trump is too small,” a reference to a crude joke about former President Donald Trump.
Court ruled unanimously In favor of the US Patent and Trademark Office’s decision to reject the application filed by Steve Elster. In doing so, the court reversed the decision of the US Court of Appeals for the Federal Circuit.
Writing for the court, Justice Clarence Thomas said that “history and tradition” suggest that restrictions on people trademarking certain names do not violate the Constitution’s First Amendment.
The law in question “is part of the common law tradition of trademarking names. We see no reason to overturn this longstanding tradition of supporting the restriction of the use of someone else’s name in a trademark,” Thomas added.
The phrase “Trump is too small” a 2016 Republican presidential primary debate With Trump and Sen. Marco Rubio of Florida in attendance. Rubio joked that Trump had small hands, adding, “And you know what they say about kids with small hands.”
Elster, an employment lawyer and progressive activist, applied in 2018 to register “Trump too small” — a dual claim meant to suggest a correspondingly small penis — with the trademark office. The slogan appears on the front of Elster’s t-shirt, with “Trump’s package is too small” written on the back.
Elster said in his application that he wanted to spread the message that “some of the characteristics of President Trump and his policies are insignificant.”
But the trademark office rejected his application on the grounds that members of the public would immediately associate the word “Trump” with the then-president. Under established law, Trump’s written consent would be required, the office concluded.
Elster argued that his free speech rights would be violated if he could not register a trademark criticizing a public figure. The appeals court ruled that his right to free speech under the First Amendment to the Constitution had been violated.
The Biden administration, representing the trademark office, later appealed to the high court.
The Supreme Court agreed that freedom of speech was violated. All nine judges concurred in the result, although they differed slightly in their reasoning, with three judges writing separate opinions.
The case is the latest of several recent Supreme Court cases dealing with free speech rights in the trademark context.
In 2017, a court overturned a ban on trademarks containing derogatory language, hands over the win to an Asian American rock band called The Slants. Two years later, the trial dropped his ban on trademarks based on obscene or scandalous words, ruling in favor of the fuct clothing brand.