Adedokun Waliyu 
The U.S. Supreme Court on Wednesday is set to consider whether a California lawyer can own a federal trademark covering the phrase “Trump Too Small” over the objections of the U.S. Patent and Trademark Office in a legal fight over the interplay between trademarks and constitutional free-speech rights.
The justices are set to hear arguments in the agency’s appeal of a lower court’s decision that reversed its denial of attorney Steve Elster’s trademark application for “Trump Too Small” – an irreverent criticism of former President Donald Trump – to use on T-shirts.
Elster applied for the trademark in 2018, invoking an exchange between Trump and U.S. Senator Marco Rubio during a debate among candidates for the 2016 Republican presidential nomination. Trump earlier had insulted Rubio as “Little Marco.” Rubio retorted that Trump had disproportionately small hands.
“Look at those hands. Are they small hands?” Trump asked at the debate. “If they’re small, something else must be small. I guarantee you, there’s no problem. I guarantee it.”
Elster said that “Trump Too Small” expressed his opinion about “the smallness of Donald Trump’s overall approach to governing.” Trump was president when the application was made.
Trump, now the frontrunner for the Republican nomination to challenge Democratic President Joe Biden in the 2024 U.S. election, is not personally involved in the case and has not commented on it.
The trademark office rejected Elster’s application based on a 1946 federal law that bans the use of a person’s name in a trademark without their permission. But a federal appeals court sided with Elster, finding that the government’s interest in protecting the privacy and publicity rights of public figures did not supersede Elster’s right to criticize them, as protected by the U.S. Constitution’s First Amendment.
Elster’s application remains on hold at the agency pending the Supreme Court’s ruling, expected by the end of June.
The Supreme Court in recent years has struck down two trademark laws, citing free speech concerns. It ruled in favor of Asian-American rock band The Slants in 2017 against a ban on trademarks that “disparage,” and in favor of artist Erik Brunetti against a prohibition on “immoral” or “scandalous” trademarks in a dispute over his “FUCT” brand in 2019.
Biden’s administration has told the Supreme Court that the law now at issue is different because it does not restrict speech based on an applicant’s viewpoint and is only meant to prevent a person’s name from “being exploited for another’s commercial gain.”
It also said that the law does not prevent Elster from using the phrase and characterized it as a “condition on a government benefit, not a restriction on speech.” The administration raised its own free-speech concerns, arguing that trademarks like Elster’s restrict the speech of others by giving individuals legal ownership of political phrases.
Elster has told the justices that public figures can misuse the law to squelch criticism, noting that trademarks for “Joe 2020” and “Hillary For America” were granted but “No Joe in 2024” and “Hillary for Prison 2016” were rejected.
