The ‘Trump Too Small’ Trademark Case Heads to the Supreme Court

In a curious turn of events, a trademark dispute that initially seemed trivial, revolving around the phrase ‘Trump too small,’ is now taking center stage at the Supreme Court, as per The Hill . Almost eight years after Donald Trump ‘s infamous defense of his hand size during a Republican presidential primary debate, this case is making headlines as it brings trademark law and the First Amendment into sharp focus.

The case began when California-based attorney Steve Elster sought to register ‘Trump too small’ as a trademark for shirts he sells online, which poke fun at the former President’s many policies. However, Elster’s application was initially rejected under a provision forbidding registered trademarks that mention a living person without their consent. But a federal appeals court later ruled that this restriction violated Elster’s free speech rights, as he was critiquing a government official—in this case, then-President Trump.

Interestingly, Trump himself is not a party in this case, leaving the Biden-era Justice Department to defend the provision before the Supreme Court. The heart of the matter lies in the First Amendment, specifically the clash between trademark law and free speech protections, as per Fox 59 .

The disputed trademark references a memorable exchange between Trump and Sen. Marco Rubio during the 2016 campaign season. Rubio, in response to Trump’s taunts of ‘Little Marco,’ humorously commented on Trump’s hand size and the common adage about men with small hands. Trump, in a subsequent primary debate, famously retorted, “He referred to my hands, ‘If they are small, something else must be small.’ I guarantee you there is no problem. I guarantee.”

This case marks the third instance in six years that the Supreme Court has been called upon to determine whether a provision in the Lanham Act, the primary federal trademark law, infringes upon the First Amendment’s free speech protections. In 2017, the Court invalidated a provision that banned registered trademarks that disparage a person, allowing the Asian American rock band The Slants to register their name. Two years later, another provision prohibiting immoral or scandalous trademarks was struck down, permitting the registration of ‘F-U-C-T.’

The Justice Department’s stance on the current restriction at issue is to characterize it as ‘viewpoint-neutral’ and argue that it only needs to meet a lower threshold. However, Elster is taking a different perspective, asserting that the provision is fundamentally flawed as it enforces a ‘content-based’ and ‘speaker-based regulation of speech.’ In the court documents, Elster’s attorney wrote, “It was enacted to suppress speech that Congress deemed to be distasteful. And its effect has been to do exactly that: blocking registration of all marks that criticize public figures while leaving those people free to register their own positive marks.”

In essence, the government’s position is that the refusal to register a trademark under Section 1052(c) doesn’t limit the rights of trademark owners to use their ‘marks in commerce’ or ‘engage in whatever speech they wish.’ Instead, as per court documents, the Justice Department claimed, “The only effect of the refusal is to deny an owner the benefits—i.e., additional mechanisms to prevent [the] use of the same mark by competitors—that federal registration provides. Because Section 1052(c) does not restrict speech, heightened scrutiny is unwarranted.”

As this intriguing case unfolds at the Supreme Court, the fundamental question at stake is whether trademark law can coexist harmoniously with the First Amendment. While the outcome remains uncertain, the ‘Trump too small’ trademark case has certainly set the stage for an important legal battle, where the protection of free speech and the regulation of trademarks intersect in the highest court in the land.