Supreme Court Finds No First Amendment Violation In Denying ‘Trump Too Small’ Trademark

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The Supreme Court held Thursday that the United States Patent & Trademark Office’s (USPTO) denial of a trademark for the phrase “Trump too small” did not violate the First Amendment.

T-shirt maker Steve Elster brought the lawsuit to challenge the USPTO’s denial of trademark protections for the phrase under the Lanham Act, a law that restricts the registration of trademarks that include the name of a “living individual.” Justice Clarence Thomas wrote in the court’s opinion that the “names clause” of the law “does not facially discriminate against any viewpoint” and has “deep roots” in historical tradition.

“No matter the message a registrant wants to convey, the names clause prohibits marks that use another person’s name without consent,” Thomas wrote. (RELATED: Trump Says Presidency ‘Cannot Function’ Without Immunity From Prosecution In SCOTUS Brief)


Florida Senator Marco Rubio (L) and Texas Senator Ted Cruz (R) watch Donald Trump (C) speak during the CNN Republican Presidential Debate March 10, 2016 in Miami, Florida. (Photo by RHONA WISE / AFP) (Photo by RHONA WISE/AFP via Getty Images)

The phrase is a nod to Republican Florida Sen. Marco Rubio’s crude joke about Trump’s “small hands” during a 2016 presidential debate, which Elster explained in court documents he adopted to express “that some features of President Trump and his policies are diminutive.” (RELATED: Supreme Court Tosses Doctors’ Challenge To Abortion Pill)

“The Lanham Act’s names clause has deep roots in our legal tradition,” Thomas continued. “Our courts have long recognized that trademarks containing names may be restricted. And, these name restrictions served established principles. This history and tradition is sufficient to conclude that the names clause—a content-based, but viewpoint-neutral, trademark restriction—is compatible with the First Amendment.”

JT Morris, senior attorney at the Foundation for Individual Rights and Expression, which filed an amicus brief in the case, said in a statement that the ruling “makes it easier to register trademarks that flatter rather than make fun of powerful public figures.”

“But Americans shouldn’t need written permission from Donald Trump or Joe Biden just to trademark criticism,” Morris said.

The Supreme Court has yet to rule on a significant case directly involving the former president: his bid to dismiss his federal election interference case brought by special counsel Jack Smith based on presidential immunity.

In March, the Supreme Court reversed a Colorado Supreme Court ruling that found Trump ineligible for the state’s 2024 ballot.

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