The first case involving former President Donald Trump reached the Supreme Court – but it isn’t one actually involving his business dealings, his alleged efforts to overturn the 2020 election, or even his handling of classified documents. Trump wasn’t even the plaintiff, a defendant or a target.
Rather, his name and image were the issue, and it is a case that had its origins back to a presidential primary debate in 2016. It involves a political activist’s desire to register a suggestive phrase that targeted the former president, referencing Senator Marco Rubio’s (R-Florida) suggestion that Trump had “small hands.”
Donald Trump Too Small Trademark!
Two years later, part-time Democratic activist Steve Elster applied to trademark the phrase “Trump Too Small” for t-shirts.
However, the United States Patent and Trademark Office (USPTO) rejected the proposed trademark as federal law bars any registration of a living person’s name without his consent. The trademark office added that nothing prevents Elster or anyone else from using the phrase without a trademark.
The U.S. Court of Appeals for the Federal Circuit disagreed with that decision and ruled that the denial of the trademark violated Elster’s free speech rights. The USPTO, represented by the U.S. Department of Justice (DoJ), appealed to the Supreme Court.
Supreme Court Seems Ready to Reject Trademark Claim
On Wednesday, the majority of the justices seemed inclined to back the U.S. Patent and Trademark Office and deny Elster the trademark.
“The question is: Is this an infringement on speech? And the answer is no,” said Justice Sonia Sotomayor, one of the high court’s liberal justices. “He can sell as many shirts with this saying and the government’s not telling him he can’t use the phrase, he can’t sell it anywhere he wants. There’s no limitation on him selling it. So there’s no traditional infringement.”
Justice Clarence Thomas, one of the justices in the conservative majority, took a similar view in questioning Elster’s lawyer, Jonathan Taylor, who conceded that even without a trademark his client can still make and market t-shirts, mugs, and other products with the slogan “Trump Too Small.”
“What speech is precisely being burdened,” Thomas asked. “If your argument is that somehow your speech is being impeded, I think it would be good to know precisely how it’s being impeded or burdened.”
Chief Justice John Roberts further raised concerns about how a ruling in Elster’s favor might end up limiting the First Amendment rights of others.
“Presumably there’ll be a race for people to trademark, you know, ‘Trump Too This,’ ‘Trump Too That,’ whatever,” Roberts suggested. “And then, particularly in an area of political expression, that cuts off a lot of expression you might – other people might regard as important infringement on their First Amendment rights.”
Justice Ketanji Brown Jackson, the Supreme Court’s newest justice also made clear that “trademark is not about the First Amendment,” and that it is really “about source identifying and preventing consumer confusion.”
Even in a deeply divided nation, it appears that sometimes people – even SCOTUS justices – might be able to agree on something. That might not be as true when the justices likely hear a lot more arguments about former President Trump in the months and years to come!
Author Experience and Expertise
A Senior Editor for 19FortyFive, Peter Suciu is a Michigan-based writer. He has contributed to more than four dozen magazines, newspapers, and websites with over 3,200 published pieces over a twenty-year career in journalism. He regularly writes about military hardware, firearms history, cybersecurity, politics, and international affairs. Peter is also a Contributing Writer for Forbes and Clearance Jobs. You can follow him on Twitter: @PeterSuciu.