The U.S. Supreme Court on Thursday rejected a political activist鈥檚 attempt to trademark the phrase 鈥淭rump Too Small,鈥 saying the federal trademark office did not violate the First Amendment when it declined to register the mark.
Justice Clarence Thomas wrote the majority opinion for a unanimous court.
鈥淥ur courts have long recognized that trademarks containing names may be restricted. And these name restrictions served established principles. This history and tradition is sufficient to conclude that the names clause 鈥 a content-based, but viewpoint-neutral, trademark restriction 鈥 is compatible with the First Amendment,鈥 Thomas wrote, referring to a provision of the federal trademark law at issue in the case.
鈥淲e conclude that the names clause is of a piece with a common-law tradition regarding the trademarking of names,鈥 he added later. 鈥淲e see no reason to disturb this longstanding tradition, which supports the restriction of the use of another鈥檚 name in a trademark.鈥
The dispute can be traced back to a memorable squabble between then-candidate Donald Trump and Florida GOP Sen. Marco Rubio during the 2016 Republican presidential primary, in which the senator joked about the size of Trump鈥檚 hands ahead of a debate and said, 鈥淵ou know what they say about men with small hands.鈥
Trump shot back during the debate, stretching his hands out for the audience to see and insisting Rubio鈥檚 suggestion that 鈥渟omething else must be small鈥 was false.
鈥淚 guarantee you, there鈥檚 no problem,鈥 Trump said at the time.
A host of headlines ensued, including one from CNN that read, 鈥淒onald Trump defends size of his penis,鈥 and another from Vanity Fair that said: 鈥淒onald Trump Assures America He is Well-Endowed.鈥
Two years later, attorney Steve Elster sought to register 鈥淭rump Too Small鈥 as a trademark for use on T-shirts. He said in his registration request that the proposed trademark aims to 鈥渃onvey that some features of President Trump and his policies are diminutive.鈥
鈥淭he mark criticizes Trump by using a double entendre, invoking a widely publicized exchange from a 2016 Republican primary debate in which Trump commented about his anatomy, while also expressing Elster鈥檚 view about 鈥榯he smallness of Donald Trump鈥檚 overall approach to governing as president of the United States,鈥欌 attorneys for Elster told the justices in court papers.
Federal law bars people from registering a trademark of a name of a living person without their consent. The U.S. Patent and Trademark Office refused registration because the use of the name 鈥淭rump鈥 would be construed by the public as a reference to the former president. The question for the Supreme Court was whether the prohibition could be squared with the First Amendment. Elster appealed to the USPTO鈥檚 Trademark Trial and Appeal Board, which also refused registration. A federal appeals court, however, later held that the refusal violated Elster鈥檚 First Amendment rights.
Justice Amy Coney Barrett, in a concurring opinion, said she agreed with the court鈥檚 decision but not its reasoning. Thomas relied heavily on the nation鈥檚 history and tradition with trademark law to settle the case. Barrett said it could have been dealt with based on the court鈥檚 past precedent.
鈥淭he government can reasonably determine that, on the whole, protecting marks that include another living person鈥檚 name without consent risks undermining the goals of trademark,鈥 Barrett wrote, in an opinion that was joined in part by the court鈥檚 liberal wing. The bar on trademarking someone else鈥檚 name, she wrote, 鈥渋s therefore constitutional, both facially and as applied鈥 to this case.
Justice Sonia Sotomayor similarly wrote in a concurrence joined by the court鈥檚 other two liberals that she would have applied the court鈥檚 First Amendment precedent to decide the case. She said she was 鈥渞eluctant鈥 to go down the path chosen by Thomas and her other colleagues.
The provision of federal trademark law upheld in the case, Sotomayor wrote, 鈥渋s constitutional because it is a viewpoint-neutral, reasonable limitation on a trademark鈥檚 registration.鈥
At oral arguments, the justices seemed inclined to side with the trademark office, with several raising doubts that Elster鈥檚 free speech rights had been trampled on by the agency. Nothing stopped Elster from making or selling the T-shirts.
鈥淭he question is: Is this an infringement on speech? And the answer is no,鈥 Sotomayor said at one point. 鈥淭here鈥檚 no limitation on him selling it. So there鈥檚 no traditional infringement.鈥
Thomas similarly posited that if Elster鈥檚 鈥渁rgument is that somehow your speech is being impeded, I think it would be good to know precisely how it鈥檚 being impeded or burdened.鈥
In two recent cases, the court bolstered First Amendment protections when it declined to back decisions by the USPTO to deny trademark registrations based on other parts of the Lanham Act.
In 2017, the court ruled in favor of Simon Tam, an Asian-American musician and political activist who named his rock band 鈥淭he Slants鈥 in an attempt to take back a term that once was directed as an insult. He sought to register the name with the trademark office but was turned away on the ground that it is disparaging to 鈥減ersons of Asian descent.鈥
Two years later, the justices struck down a provision of the Lanham Act that prohibited the agency from registering 鈥渋mmoral鈥 or 鈥渟candalous鈥 trademarks, clearing the way for a clothing designer to apply for a trademark for a clothing line called 鈥淔UCT.鈥
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