A landmark case before the Supreme Court is set to test the boundaries of the First Amendment, focusing on the registration of the phrase “Trump Too Small” as a trademark without former President Donald Trump’s explicit consent. The case, Vidal v. Elster, revolves around activist Steve Elster’s attempt to register the phrase for t-shirts, using a double entendre from a 2016 Republican primary debate where Trump’s anatomy became a topic of discussion.
Trump is not directly involved in the case, yet his name is at the center of oral arguments as the justices examine whether a federal trademark statute infringes upon the First Amendment. The statute in question, part of the Lanham Act, prohibits the use of a living person’s name without their written consent in trademarks.
The dispute traces back to a memorable exchange during the 2016 Republican presidential primary between Trump and Florida GOP Sen. Marco Rubio. Elster, seeking to convey criticism of Trump’s policies and demeanor, applied to register “Trump Too Small” as a trademark for t-shirts.
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The US Patent and Trademark Office (USPTO) refused registration, citing the Lanham Act. Elster’s legal battle led to a federal appeals court ruling in his favor, emphasizing his First Amendment rights.
The Justice Department, representing the USPTO, argues that the refusal does not curb Elster’s speech but conditions trademark benefits on Lanham Act compliance. Elster’s legal team contends that the provision grants public figures a “heckler’s veto,” allowing them to determine if speech about them can be registered as a trademark.
The outcome of Vidal v. Elster has the potential to redefine the intersection between free speech and federal trademark law. Legal experts speculate that the case could lead to a broader ruling on the First Amendment’s role in trademark law, influencing future trademark registrations and commercial speech protections. The Supreme Court’s decision in this case is eagerly anticipated and could have far-reaching implications for free speech rights in commercial contexts.
