The Supreme Court on Thursday rejected a California lawyer’s free-speech claim that he may trademark the double-entendre phrase “Trump Too Small” for use on T-shirts criticizing former president Donald Trump.
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The Biden administration asked the justices to uphold the U.S. Patent and Trademark Office’s decision to deny the trademark application from attorney Steve Elster because federal law disallows trademarks that use a person’s name without their consent.
In writing the unanimous decision by the court, Justice Clarence Thomas said the ruling was narrow and does not address broader questions about trademark and free speech rights beyond this particular statute. The justices said they would leave those concerns to future cases.
“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,” Thomas wrote. “Though the particulars of the doctrine have shifted over time, the consistent through line is that a person generally had a claim only to his own name.”
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The decision reverses a unanimous panel of the U.S. Court of Appeals for the Federal Circuit, which said in 2022 that a prohibition on violating a person’s privacy was outweighed by Elster’s First Amendment right to criticize public officials.
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At oral argument in November in Vidal v. Elster, Chief Justice John G. Roberts Jr. suggested that ruling for Elster could make it more difficult for others to create their own takes about Trump, the presumptive Republican presidential nominee.
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Elster came up with the idea for a “Trump Too Small” T-shirt after a memorable exchange of locker-room taunts in 2016 between Trump and Sen. Marco Rubio (R-Fla.), who at the time were rivals for the Republican presidential nomination. Tired of Trump’s dismissal of him as “Little Marco,” Rubio criticized the size of Trump’s hands during a campaign stop.
“You know what they say about men with small hands,” Rubio told a crowd in Salem, Va., pausing afterward to let the audience laugh. “You can’t trust ’em.”
Trump responded during a televised presidential debate days later with a remarkable claim about the size of his hands, and other extremities.
“Look at those hands, are they small hands?” Trump said, raising them for viewers to see. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”
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The Biden administration asked the justices to uphold the U.S. Patent and Trademark Office’s decision to deny the trademark application from attorney Steve Elster because federal law disallows trademarks that use a person’s name without their consent.
In writing the unanimous decision by the court, Justice Clarence Thomas said the ruling was narrow and does not address broader questions about trademark and free speech rights beyond this particular statute. The justices said they would leave those concerns to future cases.
“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,” Thomas wrote. “Though the particulars of the doctrine have shifted over time, the consistent through line is that a person generally had a claim only to his own name.”
ADVERTISING
The decision reverses a unanimous panel of the U.S. Court of Appeals for the Federal Circuit, which said in 2022 that a prohibition on violating a person’s privacy was outweighed by Elster’s First Amendment right to criticize public officials.
Follow Election 2024
At oral argument in November in Vidal v. Elster, Chief Justice John G. Roberts Jr. suggested that ruling for Elster could make it more difficult for others to create their own takes about Trump, the presumptive Republican presidential nominee.
We’re tracking the major Supreme Court cases of 2024.
End of carousel
Elster came up with the idea for a “Trump Too Small” T-shirt after a memorable exchange of locker-room taunts in 2016 between Trump and Sen. Marco Rubio (R-Fla.), who at the time were rivals for the Republican presidential nomination. Tired of Trump’s dismissal of him as “Little Marco,” Rubio criticized the size of Trump’s hands during a campaign stop.
“You know what they say about men with small hands,” Rubio told a crowd in Salem, Va., pausing afterward to let the audience laugh. “You can’t trust ’em.”
Trump responded during a televised presidential debate days later with a remarkable claim about the size of his hands, and other extremities.
“Look at those hands, are they small hands?” Trump said, raising them for viewers to see. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”
