Supreme Court affirms rejection of “Trump is too small” trademark in free-speech dispute

Washington – The Supreme Court ruled Thursday that the U.S. Patent and Trademark Office did not violate the First Amendment when it refused to register a trademark for the phrase “”.Trump is too small,” a federal statute prohibiting trademarks incorporating the names of others is unconstitutional.

High Court Changed a decision The U.S. Court of Appeals for the Federal Circuit found that barring “Trump Too Small” from registering under federal trademark law unconstitutionally limits free speech. The ruling rejects an attempt by a California attorney to trademark the phrase.

“The history and tradition of restricting trademarks containing names is sufficient to conclude that the Names Clause is compatible with the First Amendment,” Justice Clarence Thomas wrote for the majority.

The court unanimously ruled that a federal ban on trademarks that include a living person’s name without their consent does not violate free speech rights and noted that its decision was narrow.

“The names section of the Lanham Act has deep roots in our legal tradition. Our courts have long recognized that trademarks containing names can be restricted,” Thomas wrote. “Furthermore, these name restrictions served established principles. This history and tradition are sufficient to conclude that the Names Division — a content-based, but view-neutral, trademark restriction — is compatible with the First Amendment.”

Justice Amy Coney Barrett and Justices Elena Kagan, Sonia Sotomayor and Katanji Brown Jackson separately noted that while they agreed with the constitutionality of the so-called names clause, they disagreed with some of Thomas’ reasons.

The “Trump is too small” case

Vidal v. The controversy stems from California attorney Steve Elster, known as Elster, trying to register the words “Trump Too Small” with the US Patent and Trademark Office in 2018 for use on shirts and hats. During the 2016 race for the White House, Trump and Florida Sen. Marco Rubio. Rubio, the GOP presidential hopeful, has joked that Trump has disproportionately small hands, prompting Trump to insult his anatomy. To preserve his hand size During a televised presidential debate.

Elster said he wanted to register the sign to convey a political message about the former president, who is running for re-election, and his “package” of policies.

The t-shirt was included in Steve Elster’s application to trademark “Trump is too small” with the US Patent and Trademark Office.

Steve Elster/US Patent and Trademark Office


A hearing attorney for the Patent and Trademark Office denied Elster’s application for registration, citing a provision of the Lanham Act that prevents registration of a living person’s name without their consent.

An internal appeals board upheld the rejection, noting that Trump’s name was on the sign without his approval. But the Federal Circuit reversed, finding the Patent and Trademark Office’s reliance on a section of the Lanham Act unconstitutional when it comes to marks critical of a government official or public figure.

Although his trademark application was rejected, Elster’s T-shirts bearing the slogan “Trump Too Small” are still available online for $24.99.

The Supreme Court’s ruling joins a string of other First Amendment challenges to the provisions of the Lanham Act, the main law governing trademarks. High Court in 2017 struck a part Act which prohibited registration of disparaging marks and He did the same 2019 for a provision prohibiting indecent or defamatory marks.

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