The Supreme Court will decide a case about an effort to cash in on a phrase about “diminutive” aspects of former President Donald Trump, a trademark dispute that could open public officials to more money-making criticism that uses their names.
The justices on Monday agreed to hear an appeal from the U.S. Patent and Trademark Office of a lower court ruling that allowed a trademark for “Trump too small.”
The case started with Steve Elster, who in a 2018 trademark application said he intended to “convey that some features of President Trump and his policies are diminutive” and sell it on T-shirts.
A federal law gives some legal protections to the holder of a trademark, and for decades has prohibited the registration of trademarks that include the name, portrait or signature of a living person except by written consent.
But the U.S. Court of Appeals for the Federal Circuit found a trademark law’s restriction on the use of a person’s name without their consent violates the First Amendment when it chills criticism of public figures or government officials.
The Biden administration, in a petition urging the Supreme Court to accept the case, wrote that trademark registration is a government benefit that doesn’t relate to free speech.
“No one doubts that political speech is ‘at the heart’ of what the First Amendment protects,” the brief said. “But as explained above, [the trademark law] is not a restriction on speech; it is a viewpoint-neutral condition on a government benefit.”
The trademark law, the Biden administration argued, lined up with long-standing practices that allow people to control their own likeness in commerce. Further, the administration said that trademark registration does not actually chill speech — people can still sell goods with a trademark and even sue for infringement without registration.
When it wrote the trademark law, Congress did not endorse or restrict particular speech, the brief said, “Rather, Congress has simply withheld specific enforcement benefits from a particular set of speakers.”
Elster’s trademark references a series of exchanges between Trump and Sen. Marco Rubio, R-Fla., during the 2016 presidential campaign. There, the candidates discussed various parts of Trump’s anatomy and Rubio asserted Trump’s hands were too small.
Initially the trademark office denied the application and Elster appealed to the Federal Circuit. The appeals court found that trademark law’s restriction on the use of a person’s name without their consent violated free speech when it comes to public figures.
In a filing asking the justices not to take the case, Elster’s attorneys argued that in prior cases the Supreme Court has recognized that trademark restrictions chill free speech. Elster argued the law would tamp down on efforts to criticize public officials.
“Indeed, the statute makes it virtually impossible to register a mark that expresses an opinion about a public figure — including a political message (as here) that is critical of the President of the United States,” Elster’s brief said.
The case will likely be argued during the court’s next term starting in October.