Supreme Court to Consider Whether Trump Insult Can Be Trademarked

Former President Donald Trump speaks as he arrives for the second day of his civil fraud trial at New York State Supreme Court in New York, on Oct. 3, 2023. Michael M. Santiago/Getty Images

The U.S. Supreme Court is hearing arguments on Nov. 1 surrounding whether the federal government is infringing on the First Amendment by blocking an attorney’s request to trademark an insult of former President Donald Trump.

The case, Vidal v. Elster, involves a California-based attorney and activist Steve Elster who asked to trademark the phrase “Trump Too Small,” which he planned to sell on T-shirts. The phrase is a double entendre emanating from an exchange between then-candidate Trump and Sen. Marco Rubio (R-Fla.) during one of the 2016 Republican presidential primary debates.

Mr. Rubio had said that Mr. Trump had small hands, noting, “you know what they say about guys with small hands.” Mr. Elster aimed to convey that “some features of President Trump and his policies are diminutive.”

Department of Commerce building in Washington, on April 10, 2023. Madalina Vasiliu/The Epoch Times

The U.S. Patent and Trademark Office (USPTO), which is embedded in the Department of Commerce, refused to register Mr. Elster’s phrase because of a law known as the Lanham Act, which governs trademark law.

The statute contains a section allowing the refusal of a given trademark if it “consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased president of the United States during the life of his widow, if any, except by the written consent of the widow.”

A review board within the USPTO affirmed the decision, but that was later overturned by the U.S. Court of Appeals for the Federal Circuit. The federal circuit ruled that that the USPTO’s application of the Lanham Act to “Trump Too Small” violated the First Amendment. While rejecting the trademark doesn’t prevent Mr. Elster from communicating his slogan, the federal circuit argued that it was a form of content-based discrimination that didn’t survive the strict scrutiny needed for restricting speech.

“The government does not have a privacy or publicity interest in restricting speech critical of government officials or public figures in the trademark context—at least absent actual malice, which is not alleged here,” the court’s opinion read.

Now, the Biden administration is seeking to reverse that decision, and argues that Mr. Elster is facing a restriction on a government benefit rather than restriction on his speech.

It’s unclear how the Supreme Court will rule, but it has, in recent years, ruled against certain trademark restrictions. For example, the court said in 2017 that an Asian-American band could trademark its name “The Slants,” despite its disparaging or offensive connotations. The justices also ruled in favor of a clothing brand named “FUCT” in 2019.