On Thursday, the Supreme Court rejected a California lawyer's attempt to trademark the phrase “Trump Too Small” for use exclusively on T-shirts.
The judges said trademark law prohibits the use of the name of a living person, including former President Trump.
The vote was 9-0.
Trump was not a party to the Vidal vs. Elster, but in the past he objected when companies and others tried to use his name.
Concord, California, attorney Steve Elster said he was amused in 2016 when Republican presidential candidates traded barbs about the size of Trump's hands during a debate. Florida Sen. Marco Rubio, whom Trump had mocked as “little Marco,” asked Trump to raise his hands, which he did. “You know what they say about guys with small hands,” Rubio said.
After Trump won the election, Elster decided to sell T-shirts with the phrase “Trump too small,” which he said was intended to criticize Trump's lack of accomplishments on civil rights, the environment and other issues.
Legally he was free to do so, but the United States Patent and Copyright Office denied his request to register the phrase for his exclusive use.
When he appealed the denial, he won a federal appeals court ruling that his “Trump too small” slogan was political commentary protected by the First Amendment.
The Biden administration's attorney general, Elizabeth Prelogar, appealed and urged the Supreme Court to reject the trademark application.
He acknowledged that Elster had the right to free speech to mock the former president, but argued that he had no right to “assert property rights on behalf of another person.”
“For more than 75 years, Congress has directed the United States Patent and Trademark Office to refuse to register trademarks that use the name of a particular living person without his or her written consent,” he said.
Writing for the court, Justice Clarence Thomas said Thursday: “Elster contends that this ban violates his First Amendment right to free speech. We maintain that this is not the case,”
