The Supreme Court of the United States is set to review a unique case involving the First Amendment and trademark denial. The case, Katherine K. Vidal, Under Secretary of Commerce for Intellectual Property and Director, United States Patent and Trademark Office v. Steve Elster, concerns the denial of a trademark for a T-shirt featuring the phrase “TRUMP TOO SMALL,” which is sold by Steve Elster on his website TrumpTooSmall.com. Elster’s trademark application for this phrase was refused, citing Section 1052(c) of Title 15, which specifies that a trademark may be denied if it involves the name of a living individual without their written consent.
Elster’s website prominently displays banners linking to news articles that reference the size of former President Donald Trump’s genital organ, notably highlighting a 2016 presidential debate in which the topic was humorously discussed. The petition to the Court emphasizes that Elster’s trademark application explicitly references this exchange between Trump and Senator Marco Rubio, intending to convey a message about certain aspects of Trump and his policies being “diminutive.”
The crucial legal question before the Supreme Court revolves around whether the denial of Elster’s trademark application under Section 1052(c) violates the Free Speech Clause of the First Amendment, particularly when the mark in question contains criticism of a government official or public figure. The case not only raises questions about the boundaries of trademark regulations but also delves into the complexities of free speech, political satire, and the intersection of public figures’ rights with the First Amendment’s protections.
Section 1052(c) of Title 15 provides in pertinent part that a trademark shall be refused registration if it “[c]onsists of or comprises a name * * * identifying a particular living individual except by his written consent.” 15 U.S.C. 1052(c).
The question presented is as follows: Whether the refusal to register a mark under Section 1052(c) violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.
According to Elster’s registration request, the phrase he sought to trademark invokes a memorable exchange between President Trump and Senator Marco Rubio from a 2016 presidential primary debate, and aims to “convey that some features of President Trump and his policies are diminutive.”
