The Supreme Court Will Finally Hear the “Trump Too Small” Trademark CaseNovember 1, 2023

In June, the Supreme Court agreed to hear the trademark dispute over “Trump Too Small”. The Supreme Court will finally start hearing this case starting November 1, 2023.

This case arose out of Steve Elster’s efforts to register the phrase “Trump Too Small” for printing on shirts. In attempting to register this trademark, the Examining Attorney at the U.S. Patent and Trademark Office refused registration under Section 2(c) of the Trademark Act (15 U.S.C. § 1052(c)) on the ground that the mark “comprises matter that may falsely suggest a connection with President Donald J. Trump… compris[ing] his name without his written consent.” Appl. No. 87749230, TTAB Decision, July 1, 2020, p.2. The Trademark Trail and Appeal Board (TTAB) affirmed the Examiner’s opinion that the trademark would fall under Section 2(c) of the Trademark Act, which precludes registration of marks that “[c]onsist[s] of or comprises a name… identifying a particular living individual except by his written consent.” 15 U.S.C. § 1052(c).

The Federal Circuit heard the case on appeal from the TTAB and reversed, stating that rejecting the mark based on Section 2(c) violates Elster’s First Amendment rights. The Federal Circuit noted that the question was “whether the government has an interest in limiting speech on privacy or publicity grounds if that speech involves criticism of government officials—speech that otherwise is at the heart of the First Amendment.” In re Elster, Fed. Cir. 2022, p. 11. Citing previous Supreme Court decisions, such as Bartnicki v. Vopper (532 U.S. 534 (2001)) and Time, Inc. v. Hill (385 U.S. 374 (1967)), the Court determined that the government has no legitimate interest in protecting the privacy of President Trump from any injury arising from Elster’s political criticism. Id. at p.11-12. The Court further concluded that the government has no valid publicity interest that overcomes Elster’s First Amendment rights.

The government appealed and as director of the USPTO Kathy Vidal is named as the appealing party. The case was granted certiorari on June 5, 2023. Since then, both parties have filed briefs describing the circumstances and arguments. Of importance, the Supreme Court will hear “whether the refusal to register a mark under Section 1052(c) violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.” We shall see how the arguments play in front of the Justices in November. What the Court decides is important in trademark cases regarding political commentary of government or public figures.

Ashley Holland is an intellectual property attorney in the MVS Biotechnology and Chemical Practice Group. To learn more, visit our MVS website, or contact Ashley directly via email.

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