Supreme Court: Justices take First Amendment case over ‘Trump too small’ trademark
Kaelan Deese
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The Supreme Court agreed on Monday to consider if a California attorney has a First Amendment right to trademark the phrase “Trump too small” for use on T-shirts mocking the former president.
The Biden administration asked the justices to uphold the U.S. Patent and Trademark Office’s rejection of attorney Steve Elster’s application because federal law doesn’t allow trademarks to use a person’s name without first receiving consent.
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The idea for the merchandise came to Elster after the exchange of taunts between then-candidate Donald Trump and Sen. Marco Rubio (R-FL), who at the time were rivals for the 2016 Republican presidential bid.
Rubio was growing weary of Trump’s taunts calling him “Little Marco,” so Rubio pointed out the size of Trump’s hands during a March 2016 campaign stop.
“You know what they say about men with small hands,” Rubio told a crowd in Salem, Virginia. “You can’t trust ’em.”
When Elster sought to register the trademark with the U.S. Patent and Trademark Office in 2018, he was rejected on the basis that people would associate the word “Trump” with the then-president.
Elster said in his application that he wanted to include the phrase on the front of the shirts along with a phrase on the back stating: “Trump’s package is too small.”
The U.S. Court of Appeals for the Federal Circuit ruled against the trademark office in a February 2022 ruling, saying the denial violated Elster’s free speech rights under the First Amendment.
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The Justice Department later asked the Supreme Court to take up the case, saying in court filings that for decades, the trademark office has refused to register trademarks that incorporate the name of a living person absent written consent.
The nine justices agreed to take up the case for the fall term, and it will likely be heard by the full court before January.