The Supreme Court appears ready to deny the registration of a trademark for T-shirts with the inscription "Trump Too Small"

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Politics / Thursday, 02 November 2023 14:33

Donald Trump finally made it to the Supreme Court on Wednesday, albeit indirectly. He wasn't a plaintiff, defendant, or target. But his name and image were the issue.

The case dates back to the 2016 presidential primaries when Senator Marco Rubio mocked candidate Trump as a man with "small hands."

"He referred to my hands," Trump retorted. "If they're small, something else must be small. I guarantee you there's no problem. I guarantee you."

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Two years later, Democratic activist Steve Elster applied for a trademark registration with the phrase "TRUMP TOO SMALL" for use on T-shirts. The Patent and Trademark Office rejected the proposed mark because federal law prohibits the registration of a trademark of a living person without their consent. The trademark office said that nothing prevents Elster or anyone else from using this phrase, but without a trademark.

The US Court of Appeals for the Federal Circuit disagreed, ruling that the denial of trademark registration violated Elster's freedom of speech rights.

However, this argument found little support in the Supreme Court on Wednesday.

"The question is, is this a violation of freedom of speech? And the answer is no," said Justice Sonia Sotomayor. "He can sell as many 'Trump Too Small' shirts as he wants."

Justice Clarence Thomas expressed a similar view, questioning Elster's attorney, Jonathan Taylor, who admitted that without a trademark, his client could still produce and sell as many shirts or mugs as he wanted with the "Trump Too Small" logo.

So, Thomas asked, "What speech is burdened here, precisely?"

Taylor argued that Elster was denied "significant rights and benefits" that are "typically available to all trademark owners who pay a registration fee," and he was denied this "solely because his mark expresses a public message."

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In other words, the denial of the trademark means that Elster cannot charge others for using the phrase "Trump Too Small."

This prompted Justice Elena Kagan to note that the court has repeatedly said that "so long as his point of view isn't based on his point of view, the government can give benefits to some people and not others."

Justice Neil Gorsuch chimed in, saying, "there have always been some restrictions on the content of trademarks." Justice Brett Kavanaugh agreed, noting that "Congress thinks it's appropriate to impose a restriction on people who profit from the commercial appropriation of someone else's name."

And Justice Ketanji Brown Jackson added that "trademark law is not connected to the First Amendment." It's about "defining source and preventing consumer confusion."

And finally, here's what Chief Justice John Roberts had to say: "What are you going to do with the government's argument that you are undermining First Amendment values because the whole point of a trademark, of course, is to prevent other people from doing the same thing?" If you win a trademark for the slogan "Trump Too Small," other people won't be able to use it, right?"

If that's indeed a problem, Taylor responded, Congress can address it. But he didn't say how.

The bottom line at the end of Wednesday's argument? Yes, Virginia, there are some things that the Supreme Court Justices seem to agree on.