‘Trump too small’ trademark dispute goes to US Supreme Court
- The US Supreme Court agreed to hear a trademark dispute over the phrase ‘Trump too small’ used to mock the former president
- The case stems from an attempt by a California lawyer to trademark the sexually suggestive phrase and print it on T-shirts
The US Supreme Court agreed to consider whether a California lawyer’s federal trademark for the phrase “Trump too small” – a cheeky criticism of former president Donald Trump – should have been granted.
The justices took up an appeal by the US Trademark Office of a lower court’s decision that trademark applicant Steve Elster’s free speech protections under the US Constitution’s First Amendment for his criticism of public figures outweighed the federal agency’s concerns about Trump’s rights.
Elster applied for the “Trump too small” trademark in 2018 to use on shirts. Elster said the mark was inspired by an exchange between Trump and US Senator Marco Rubio from a March 2016 presidential candidate debate and aims to “convey that some features of President Trump and his policies are diminutive”.
In legal papers, Elster cited remarks including Rubio’s about the size of “certain parts of (Trump’s) anatomy, such as his hands” and news articles about the former president’s “Shrinking of America” and reduction of lands established as national monuments.
After the trademark office rejected Elster’s application, an agency in-house tribunal upheld that decision, citing a federal law that bars trademarks that use a person’s name without his or her consent. The US Court of Appeals for the Federal Circuit reversed the ruling last year, allowing the trademark.
“The government has no legitimate interest in protecting the privacy of President Trump, the least private name in American life,” Circuit Judge Timothy Dyk wrote in that decision, adding that publicity rights that protect people’s use of their name in commerce “cannot shield public figures from criticism.”
