A California attorney’s quest to trademark the phrase “Trump too small” was quashed Thursday by the Supreme Court, which unanimously ruled that the rejection of the man’s brand application did not violate his free speech rights.
Steve Elster had sought the trademark as a nod to a dig by Sen. Marco Rubio (R-Fla.) during the 2016 Republican presidential primary that mocked the size of Donald Trump’s hands — and implied the real estate mogul came up short in other areas.
“We conclude that a tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fits within that tradition,” Justice Clarence Thomas wrote in the court’s main opinion.
“We see no reason to disturb this longstanding tradition, which supports the restriction of the use of another’s name in a trademark.”
In addition to Thomas, Justices Brett Kavanaugh, Amy Coney Barrett and Sonia Sotomayor filed opinions concurring with the decision, but raising issues with technical elements of their colleague’s rationale.
“I agree with the Court that the names clause is constitutional, particularly in light of the long history of restricting the use of another’s name in a trademark,” Kavanaugh wrote.
“In my view, a viewpoint-neutral, content-based trademark restriction might well be constitutional even absent such a historical pedigree. We can address that distinct question as appropriate in a future case.”
The case has its roots in a stump speech Rubio gave while challenging Trump for the 2016 Republican nomination
“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 mocked at the time.
“Have you seen his hands? And you know what they say about men with small hands — you can’t trust them.”
In a subsequent debate, Trump shot back, saying Rubio had said that if his hands are small, “something else must be small.”
“I guarantee you there is no problem,” added the future 45th president. “I guarantee.”
Rubio later expressed regret over the jab.
Elster’s bid to trademark “too small” was rejected by the US Patent and Trademark Office, which contended that the applicant couldn’t use Trump’s name without consent.
During oral arguments last year, justices expressed skepticism over Elster’s claim.
“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 argued at the time.
Prior to taking his case to the high court, Elster was shot down at the Trademark Trial and Appeal Board, then at the DC Circuit Court of Appeals.
The Supreme Court is also expected to hand down a decision in the coming days on a much more consequential Trump case — the extent to which he enjoys presidential immunity from felony charges for acts committed while in office.
