Can a Phrase That Trolls Trump Be Trademarked? The Supreme Court Will Decide

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Is it possible to register a trademark that criticizes a political figure using their name without that person’s consent? Federal law says no, but that may soon change thanks to a legal fight involving the size of former President Donald Trump’s hands.

The Supreme Court on Monday said it will decide whether a California lawyer has the free speech right to trademark the phrase “Trump Too Small,” a reference to a taunt at the former president during the 2016 presidential campaign. In reviewing the case, the Supreme Court will revisit the constitutionality of restrictions on trademark registrations.

Steve Elster said in his application that the phrase is intended to serve as political commentary about “the smallness of Donald Trump’s overall approach to governing as president of the United States.” He includes the phrase on the front of shirts, with Trump’s positions on various issues on the back.

The U.S. Patent and Trademark Office rejected his application, citing a federal law forbidding the registration of trademarks “identifying a particular living individual except by his written consent.” But the U.S. Court of Appeals for the Federal Circuit in 2022 reversed the office’s decision. Noting that Elster’s application goes to “the heart of the First Amendment,” a unanimous panel found that the government cannot restrict speech critical of public officials in the name of trademark law.

“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” wrote Judge Timothy B. Dyk. “As a result of the President’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-President’s approach to governance, the government has no interest in disadvantaging Elster’s speech.”

The phrase comes from the 2016 Republican presidential primary when Trump repeatedly referred to Sen. Marco Rubio as “Little Marco.” Rubio responded by calling attention to the size of Trump’s hands. “You know what they say about men with small hands?“ he asked a crowd in Virginia. “You can’t trust ’em.”

The Supreme Court has previously ruled that trademark restrictions can burden private speech and violate the First Amendment. In Matal v. Tam, it concluded in 2019 the government cannot refuse to register potentially offensive names in a case concerning an Asian-American band’s application for “The Slants.” Two years before in Iancu v. Brunetti, it struck down a federal law prohibiting the registration of “immoral” or “scandalous” trademarks after a registration to a clothing company called “FUCT” was denied.

In urging the Supreme Court to grant review of the case, Solicitor General Elizabeth B. Prelogar argued it presents an opportunity to resolve the broader question of whether a refusal to grant a trademark applications can be treated as a restriction on speech or as a “condition on a government benefit.” While Elster can use the phrase, the government argued, he is not owed any trademark protections for what it characterized as “enforcing property rights in another person’s name.”

Elster countered that the federal appeals court correctly held that the First Amendment bars the trademark office from denying the registration on the ground that the phrase criticizes a former president. He said that the disputed provision of federal law constitutes a content-based restriction on speech.

“The statute makes it virtually impossible to register a mark that expresses an opinion about a public figure — including a political message (as here) that is critical of the President of the United States,” wrote Jonathan Taylor, a lawyer for Elster, in a court filing.

The court will hear the case during its next term, which starts in October.