Supreme Court will hear ‘Trump too small’ trademark dispute

Donald Trump is headed to the Supreme Court.

His name, that is.

The justices Monday agreed to take up a trademark dispute implicating the First Amendment, and a joke about the former president is at the center.

For five years, California man Steve Elster has been attempting to trademark “Trump too small” to use on shirts, a reference to a 2016 Republican presidential debate in which Sen. Marco Rubio (Fla.) made fun of Trump’s hand size.

Elster’s application was refused in part because of a federal statute that requires marks consisting of a living person’s name to have that person’s consent. Trump did not sign off.

On appeal, a federal court struck down the provision as applied to Elster, ruling it violated the First Amendment’s free speech protections because he was criticizing a government official or public figure.

The Biden-era Justice Department, representing the U.S. Patent and Trademark Office, then appealed to the nation’s highest court, asking them to weigh in because a lower court had invalidated a federal law.

The case, Vidal v. Elster, is slated to be heard during the court’s next annual term, which begins in October. 

Trump’s brand will also be at the center of a case at the court next term over whether a group of Democratic lawmakers should be able to sue to obtain documents related to Trump’s former Washington, D.C., hotel. Trump is not a party in either case.

No matter the court’s decision, Elster’s trademark application remains blocked under another provision that bans registered marks suggesting a false association with a person, living or dead. 

The dispute follows two recent cases in which the Supreme Court found that other trademark prohibitions — which banned registration of marks that were immoral, scandalous or disparaging — violated the First Amendment.

But the Justice Department in court filings contended those decisions banned speech based on its viewpoint, and the provision at issue in Elster’s case is viewpoint-neutral.

The government further wants the justices to treat trademark prohibitions as a condition on a government benefit rather than a simple restriction on speech.

“Refusal of trademark registration under Section 1052(c) does not prevent the mark owner from using the individual’s name, without that individual’s consent, in whatever speech the owner wishes to engage in,” the Justice Department wrote in its brief.

Elster responded by asking the justices to let the lower ruling stand, noting there was no split among the federal appeals courts to resolve, and that arguing the case anyway was a poor vehicle to resolve the constitutional question.

“Unlike other cases in which the Court has reviewed decisions declaring federal statutes unconstitutional, this case involves a one-off as-applied constitutional challenge—one that turns on the unique circumstances of the government’s refusal to register a trademark that voices political criticism of a former President of the United States,” Elster’s attorney wrote.