Supreme Court Wary of Trademark for ‘Trump Too Small’
The Supreme Court, which in recent years has struck down parts of the trademark law that prohibited the registration of immoral, scandalous and disparaging marks, turned out not to be ready on Wednesday to do the same in a case involving a California lawyer’s attempt to trademark the phrase “Trump too small.”
The provision at issue in the case prohibits the registration of trademarks “which identify a particular living individual except with his written consent.”
There appeared to be a consensus among the justices that the provision was different from those the court had rejected in 2017 and 2019. Some said there was no discrimination based on viewpoint, which the government generally does not allow under the First Amendment. Others added that there is a long history of people having control over the use of their names in commercial settings.
Some justices raised a more fundamental objection. They noted that the attorney, Steve Elster, could use the phrase on merchandise without trademarking it, and questioned whether the First Amendment applied at all.
“The question is: Is this an infringement of speech?” Judge Sonia Sotomayor said. “And the answer is no.”
The controversial phrase was based on a taunt made by Senator Marco Rubio, the Republican of Florida, during the 2016 presidential campaign. Mr Rubio said Donald J. Trump had “small hands”, adding: “And you know what they say about boys with small hands.”
Mr. Elster said in his trademark application that he wanted to convey the message that “some characteristics of President Trump and his policies are minor.” He tried to use the phrase the front of T-shirts with a list of Mr. Trump’s positions on the back. For example: “Small about civil rights.”
A unanimous three-judge panel of the United States Court of Appeals for the Federal Circuit ruled that the First Amendment required the trademark office to allow the registration.
“As a result of the President’s status as a public servant, and because Elster’s mark expresses his disagreement with and criticism of the then-President’s approach to governance, the Administration has no interest in disparaging Elster’s speech.” , Judge Timothy B. Dyk wrote. the court.
The Biden administration appealed the Federal Circuit’s ruling to the Supreme Court.
Malcolm L. Stewart, a deputy solicitor general presenting his 100th argument at the Supreme Court, said granting Mr. Elster a trademark would allow him to ban others from using it, reducing the amount of political speech the First Amendment should protect, would decrease. .
Chief Justice John G. Roberts echoed this point. “Especially in the area of political expression,” he said, “that cuts off a lot of speech that other people might view as a significant infringement of their First Amendment rights.”
Justice Elena Kagan asked Jonathan E. Taylor, a lawyer for Mr. Elster, to identify a precedent in which the court had struck down a law that granted a government benefit, such as trademark registration, that did not involve facial discrimination.
He replied, “I can’t point you to a case that’s exactly on all fours.”
Justice Kagan responded that she could cite many decisions supporting the opposite proposition, naming six.
Commentary on the size of Mr. Trump’s hands has a long history. In the 1980s, the satirical magazine Spy goaded 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 said addressed Mr. Rubio’s criticism.
“Look at those hands, are they little hands?” Mr. Trump said as he raised them. “And he referred to my hands: ‘If they’re small, something else must be small.’ I guarantee you there is no problem. I assure.”
If the Supreme Court upholds the provision challenged in the new case, it will mark the end of a trend.
In 2017, an eight-court panel unanimously struck down another provision, one that bans marks that defame people, living or dead, along with “institutions, beliefs, or national symbols.”
The decision, Matal vs. Tam, involved an Asian-American dance-rock band called the Slants. The court split 4-4 in much of its reasoning, but all justices agreed that the provision at issue in that case violated the Constitution because it took sides based on the speakers’ views.
In 2019, the court rejected a provision banning the registration of “immoral” or “scandalous” trademarks.
That case involved a clothing line sold under the brand name FUCT. When the case was argued, Mr. Stewart told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”
Justice Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “adversely affects certain ideas.”
If the justices were divided in the new case, Vidal v. Elster, No. 22-704, the issue was the rationale for deciding to uphold the law against them, not the outcome.
Judge Samuel A. Alito Jr. for example, Mr. Stewart asked for a theory that would allow him to vote for the government without repudiating a position he had taken in a previous case.
The judge added that the task was not urgent. “I mean,” he said, “you don’t need my vote to win your case.”