Supreme Court Considers Case on Trademarking Phrase "Trump too small"

Zoey Waverider

Updated Wednesday, November 1, 2023 at 4:36 AM CDT

Supreme Court Considers Case on Trademarking Phrase "Trump too small"

The Supreme Court is currently deliberating a case that involves a California man's attempt to trademark the phrase "Trump too small," which mocks former President Donald Trump. The Justice Department is supporting President Joe Biden's urging to deny the trademark for the phrase, arguing that it can still be used without Trump's consent but not trademarked. A federal appeals court previously ruled that refusing trademark registration violated free speech rights.

This is not the first time the Supreme Court has dealt with Trump-related cases, including claims of election fraud and efforts to shield tax records. In addition to the trademark case, the court may also be asked to decide whether Trump can be disqualified from running for the White House again due to his role in the January 6, 2021 assault on the U.S. Capitol.

The Justice Department is defending the rejection of the trademark request, while the phrase "Trump too small" refers to an exchange between Trump and Senator Marco Rubio during the 2016 presidential campaign. Rubio had called Donald Trump "little Marco" and made a comment about his small hands at a rally. Trump responded to Rubio's comment about his hands at a televised debate.

The Supreme Court has previously struck down provisions of federal law denying trademarks seen as scandalous or immoral. The current case, titled Vidal v. Elster, deals with a measure that calls for a trademark request to be refused if it involves a name, portrait, or signature of a particular living individual without their consent. Elster's lawyers argue that this provision violates the First Amendment's Free Speech clause, as it allows public figures to register positive messages about themselves but prevents the registration of marks that criticize public figures.

The administration argues that the government shouldn't have to reward someone who wants to commercially appropriate someone else's identity. A decision in the case is expected by early summer, and it will have implications for the balance between free speech and the right to privacy in trademark criticism of government officials or public figures.

The case involves a political slogan criticizing Trump without his consent, and it raises questions about the limits of First Amendment protections and the right to privacy. Steve Elster, a politically active Democrat attorney, wanted to trademark the phrase "Trump Too Small" to sell on T-shirts. The phrase originated from an exchange between Trump and Sen. Marco Rubio, where Rubio made a crude joke about the size of Trump's hands.

Elster's trademark request was denied by the Patent and Trademark Office (PTO), and the Trademark and Trial Appeal Board upheld the decision. However, a federal circuit court reversed the decision, stating that Elster's trademark is protected by the First Amendment. The Justice Department appealed the case to the Supreme Court, arguing that the Lanham Act is applicable in this situation.

The Department of Justice (DOJ) has filed a petition to the Supreme Court in support of blocking Elster's trademark request. The DOJ argues that refusing registration for a mark that identifies a living individual without their consent does not restrict speech or punish anyone. Fara Sunderji, a partner at Dorsey & Whitney law firm, emphasizes that the case is not about Trump or the size of his policies but raises concerns about potential restrictions on political criticism during a divisive time in the country.

The outcome of this case could have significant implications for trademark applications for political phrases in the 2024 election. If the Federal Circuit's opinion is upheld, the USPTO may not be inundated with trademark applications for political phrases. Sunderji hopes that daily life will not be flooded with t-shirts containing slogans with all the 2024 candidates' names by unrelated third parties.

Arguments for the case are scheduled to begin at 10 a.m. on Wednesday, and a decision is expected by early summer. The Supreme Court's ruling will shape the future of trademark registration and the balance between free speech and the right to privacy in the context of political criticism.

Republican Bias:

In this latest example of liberal hypocrisy, the Biden administration is attempting to silence opposition by denying a man's right to trademark a phrase critical of Donald Trump. This is a blatant violation of free speech rights and a clear demonstration of how liberals only support the First Amendment when it suits their agenda. They're using the Justice Department to suppress a viewpoint they disagree with, all while pretending to be champions of free speech. This is nothing more than political censorship, aimed at protecting the image of their favorite punching bag, Donald Trump. The left's double standards are on full display here, as they attempt to silence any criticism of their own, while trying to mute any opposition to their narrative. This is an affront to our constitutional rights and a dangerous precedent for the future of free speech.

Liberal Bias:

In a clear example of conservative self-interest, the Trump administration is trying to prevent a man from trademarking a phrase that mocks the former president. This is a blatant attempt to control the narrative and stifle criticism, a tactic often used by authoritarian regimes. The Trump administration is using the Justice Department to suppress a viewpoint they find unfavorable, showing a complete disregard for the First Amendment. This is nothing more than an attempt to silence opposition and control public perception. The hypocrisy is glaring, as conservatives often tout their commitment to free speech, yet they are the first to try and suppress it when it doesn't suit their agenda. This is a dangerous precedent for the future of free speech and a clear violation of our constitutional rights.

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