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Supreme Court sounds not so big on trademark for ‘Trump too small’ slogan

Federal law requires permission of a person to use their name before someone can get intellectual property protections

The Supreme Court building at sunset.
The Supreme Court building at sunset. (Bill Clark/CQ Roll Call file photo)

The Supreme Court at oral arguments Wednesday appeared skeptical of letting people get trademarks of political figures without consent, despite objections that it would unconstitutionally restrict free speech.

In the case, Steven Elster sought to register a trademark for “Trump too small,” referencing an exchange about hand size that the former president had with Sen. Marco Rubio, R-Fla., at a 2016 primary debate. The U.S. Patent and Trademark Office denied Elster’s application because he did not have Trump’s permission as required by federal law.

In the arguments, justices cited a long history of people having commercial control over their own names and the fact that Elster can still sell as many T-shirts with the slogan as he wants without the intellectual property protections a trademark would afford him.

Justices Brett M. Kavanaugh and Neil M. Gorsuch both frequently pointed out that the country has a long history of restricting what can be used as a trademark in commerce, even before the Lanham Act that established the modern trademark registration process.

Gorsuch said that there have “always been areas where there has been some limitations on the ability to trademark.” Gorsuch analogized a trademark to the government giving Elster monopoly on a phrase and “some things you’re just not allowed to monopolize.”

Kavanaugh also pointed out that Congress by enacting the law may have made “a judgment you shouldn’t be able to profit off use of someone else’s name.”

Jonathan Taylor, Elster’s attorney, on Wednesday argued that the government is restricting the public’s ability to register trademarks that criticize public officials because public figures would never consent to a disparaging trademark.

Taylor tried to distinguish the permission requirements from other aspects of trademark law that are meant to prevent confusion or deception of consumers. The requirement to get the permission of a political figure “is about protecting the feelings of famous people,” Taylor said.

Justice Ketanji Brown Jackson challenged that assertion, saying Congress may have decided that getting consent to trademark someone’s name could prevent confusion among consumers.

“You can imagine a lot of circumstances in which having a trademarked name could cause confusion in the marketplace,” Jackson said.

Chief Justice John G. Roberts Jr. said that if Elster won, it may actually have the effect of restricting political speech. Because of the way trademarks work, there would be a “race” to trademark all kinds of phrases about Trump or other political figures, Roberts said.

Then people could sue to keep others from selling products that use those phrases, Roberts said.

Taylor countered that that may be an inherent part of trademark law that the court has to embrace to avoid trampling on free-speech rights.

Justice Sonia Sotomayor pointed out several times that denying trademark registration doesn’t restrict Elster’s ability to make political speech.

Sotomayor said trademark registration provides legal benefits such as official notice to potential infringers and certain legal defenses.

The USPTO denial “doesn’t stop you from selling anywhere as much as you want,” Sotomayor said.

Sotomayor said that a trademark registration may not be considered speech. “The question is, ‘Is this an infringement on speech?’ And the answer is no,” Sotomayor said.

The U.S. Court of Appeals for the Federal Circuit had sided with Elster, and the Biden administration asked the justices to reverse that ruling. A decision is expected before the conclusion of the term at the end of June.

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