Supreme Court to rule on trademarking insult against Trump.

The Supreme Court has decided to consider whether a progressive activist can trademark the belittling phrase “Trump Too Small” for use on T-shirts. This ruling puts the Biden administration in the unusual position of defending the interests of former President Donald Trump, who is seeking the Republican Party’s presidential nomination for 2024.

The phrase “Trump Too Small” was inspired by a crude joke made by Sen. Marco Rubio during the 2016 Republican presidential primary season. Rubio mocked fellow candidate Trump, saying he had “small hands.” Rubio told supporters that Trump was “always calling me ‘little Marco.'”

“He is taller than me, he’s like 6-foot-2, which is why I don’t understand why his hands are the size of someone who is 5-foot-2,” Rubio said at the time. “Have you seen his hands? And you know what they say about men with small hands.”

The U.S. Court of Appeals for the Federal Circuit ruled in August 2022 that the U.S. Patent and Trademark Office (USPTO) was wrong to deny the trademark application of progressive activist and lawyer Steve Elster for “Trump Too Small.” Elster claims that the USPTO violated his free speech rights under the First Amendment.

The appeals court agreed with Elster, finding the denial of the trademark application “unconstitutionally restricts free speech in violation of the First Amendment,” U.S. Solicitor General Elizabeth Prelogar noted in the petition filed with the Supreme Court.

The appeals court found that the “content-based restriction” imposed by the USPTO did not survive constitutional scrutiny “because 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.”

Elster’s Intentions

Elster said he filed his 2018 trademark application because he wanted to communicate that “some features of President Trump and his policies are diminutive,” and planned to put the phrase on T-shirts, along with the phrase “Trump’s package is too small” on the back of the shirts, accompanied by examples of policy areas that supposedly matched the characterization.

The USPTO examining attorney refused registration under the Lanham Act, finding that “the use of the name ‘TRUMP’ in the proposed mark would be construed by the public as a reference to Donald Trump.” The official found that under the intellectual property statute, his office could not register trademarks that include the name of a living person without that person’s written consent.

In her petition, Prelogar urged the Supreme Court to take up the case because “[for] more than 75 years, Congress has directed the USPTO to refuse the registration of trademarks that use the name of a particular living individual without his written consent.”

Conclusion

The Supreme Court’s decision on this case will have significant implications for free speech and trademark law. It remains to be seen whether Elster will be able to trademark the phrase “Trump Too Small” and use it on T-shirts.