Supreme Court hints it will refuse ‘Trump too small’ trademark
Supreme Court justices appeared deeply skeptical Wednesday of a California lawyer’s quest to trademark the phrase “Trump too small.”
Attorney Steve Elster has been appealing the Patent and Trademark Office’s rejection of his trademark application for the use of the phrase on t-shirts, claiming the government violated his First Amendment rights by doing so.
The slogan is a nod to a riff by Sen. Marco Rubio (R-Fla.) during his 2016 presidential campaign that mocked the size of Donald Trump’s hands.
“He is taller than me, he’s like 6′ 2″, which is why I don’t understand why his hands are the size of someone who is 5′ 2,” Rubio told his supporters in a stump speech. “Have you seen his hands? And you know what they say about men with small hands — you can’t trust them.”
At a subsequent debate, Trump — who had triggered Rubio’s remark by dubbing him “Little Marco” — quipped: “He referred to my hands, [suggesting] if they are small, something else must be small.
“I guarantee you there is no problem,” added the future 45th president. “I guarantee.”
Elster has been attempting to trademark the slogan since 2018 to disparage Trump’s policies, but the trademark office rejected it on the grounds that he was using Trump’s name without his consent.
“At the end of the day, it’s pretty hard to argue that a tradition that’s been around a long, long time — since the founding, common law-type stuff — is inconsistent with the First Amendment,” Justice Neil Gorsuch said during oral arguments Wednesday.
“[A] trademark is a monopoly, is what it is. It’s a state-granted patent, old-fashioned patent monopoly. And some things you’re just not allowed to monopolize,” he added.
Before the case landed at the Supreme Court, Elster appealed the initial ruling to the Trademark Trial and Appeal Board, which upheld the rejection.
Then, Elster took the case to the DC US Court of Appeals for the Federal Circuit, which concluded that the law underpinning the rejection was unconstitutional.
The Biden administration took that decision to the high court.
Justice Sonia Sotomayor probed Elster’s argument that his free speech rights were being undermined.
“The question is, is this an infringement on speech? And the answer is no,” she said. “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.”
Chief Justice John Roberts pondered whether giving Elster the trademark could impede upon the rights of others to engage in political expression.
“That really cuts off a lot of expression a lot of other people might regard as an important infringement on their First Amendment rights,” he argued.
Elster’s attorney Jonathan Taylor conceded that his client can still sell t-shirts with the phrase despite losing the trademark application. He is currently selling them for about $29.99 apiece.
In a legal brief, Elster’s teams highlighted how positive messages such as “Hillary for America” can get approval while more negative phrases such as “Hillary for Prison 2016” often get rejected.
“While celebrity fanbases can register their celebrity adoring names as trademarks (e.g., SWIFTIES, ARNIE’S ARMY, and BEYHIVE), groups opposing presidential candidates have had their requests denied under the clause (e.g., ‘Never Trumper’),” they contended. “That is the opposite of the First Amendment’s command.”
The Biden administration countered that current trademark law amounts to a “reasonable, viewpoint-neutral condition on the benefits.”
“Even if Mr. Elster cannot register the mark ‘Trump too small,’ he can sell shirts with that slogan,” Deputy Solicitor General Malcolm Stewart argued, in his 100th appearance before the high court.
Justice Amy Coney Barrett, one of three Trump nominees hearing the case, ran through a hypothetical in which, “somebody wants to write a book called ‘Trump Too Small’ that details Trump’s pettiness over the years and just argues that he’s not a fit public official.”
“Are you saying it would be like a rational basis standard for analyzing whether that copyright restriction was permissible?” she asked.
“I’m not prepared to say just what the answer would be, but I am prepared to say that nothing follows necessarily from our position in this case with respect to that hypothetical law,” Taylor said.
The Supreme Court is expected to make a decision in the matter by early July of next year at the very latest.
