Supreme Court rules ‘Trump too small’ trademark dispute
The Supreme Court on Monday voted to rule whether a California lawyer can use the phrase “Trump too small” as a trademark, a reference to a taunt by Florida Republican Senator Marco Rubio during the 2016 presidential campaign. Mr. Rubio said that Donald J. Trump had “small hands,” adding, “And you know what they say about guys with small hands.”
The attorney, Steve Elster, said in his trademark filing that he wanted to get the message across that “some features of President Trump and his policies are diminutive.” He tried to use up the expression front of T-shirts with a list of Mr. Trump’s positions on the back. For example: “Little about civil rights.”
A federal law prohibits the registration of trademarks “that identify a particular living person except with his written consent”. Citing that law, the Patent and Trademark Office rejected the application.
A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit reigned that the First Amendment requires the office to allow the registration.
“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticisms contained in the Elster mark,” Judge Timothy B. Dyk wrote for the court. “Due to the President’s status as a public servant, and because Elster’s sign reflects his disagreement with and criticism of the then-President’s approach to governance, the government has no interest in denigrating Elster’s speech. .”
The size of Mr. Trump’s hands has long been the subject of comment. In the 1980s, the satirical magazine Spy tormented Mr. Trump, then a real estate developer in New York City, with the recurring nickname “vulgar with short fingers.”
In 2016, during a presidential debate, Mr. Trump addressed Mr. Rubio’s criticism.
“Look at those hands, are they small hands?” Mr. Trump said as he showed them off. “And he was referring to my hands – ‘if they’re small, something else must be small.’ I guarantee there is no problem. I assure you.”
The Biden Administration appealed the Federal Circuit ruling to the Supreme Court. Attorney General Elizabeth B. Prelogar said Mr Elster was free to discuss Mr Trump’s physique and policies, but was not entitled to a trademark.
In recent years, the Supreme Court has twice struck down provisions of trademark law on grounds of the first amendment.
In 2019, it rejected a provision banning the registration of “immoral” or “outrageous” trademarks.
That case involved a line of clothes sold under the brand name FUCT. When the case was argued, a government attorney told the judges that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”
Judge Elena Kagan, writing for a six-judge majority, did not dispute that. But she said the law was unconstitutional because it “disapproves of certain ideas”.
A basic tenet of First Amendment law, she wrote, is that the government should not discriminate based on the views of speakers.
In 2017, an eight-judge unanimous court struck down another provision of the trademark law, which prohibits markings that disparage people, living or dead, along with “institutions, beliefs or national symbols.”
The decision, Matal against Tam, involved an Asian American dance rock band called The Slants. The court split 4 to 4 in many of its arguments, but all judges agreed that the provision in question in that case was unconstitutional because it took sides based on the positions of the speakers.
The new case, Vidal v. Elster, No. 22-704, is arguably different, as the provision in question appears to make no such distinction. In his Brief summary of the Supreme Court, Mr. Elster responded that “the statute makes it virtually impossible to register a mark expressing an opinion about a public figure – including a political message (such as here) critical of the President of the United States.”