Supreme Court appears inclined to refuse ‘Trump too small’ trademark

A California man’s chances of trademarking “Trump too small” may be gone.

The Supreme Court on Wednesday appeared inclined to side with the Biden Justice Department in rejecting the trademark application, seeming skeptical of the man’s free speech objections.

Since 2018, California-based attorney Steve Elster has been attempting to trademark the slogan to use on shirts he sells mocking Trump in reference to an infamous 2016 debate moment.

Under a provision of federal trademark law that prohibits registering marks mentioning a living person’s name without their consent, Elster’s trademark application was rejected. 

During Wednesday’s arguments, Justice Neil Gorsuch noted a long historical tradition of such a prohibition.

“At the end of the day, it’s pretty hard to argue that a tradition that’s been around a long, long time since the founding — common-law type stuff — is inconsistent with the First Amendment,” Gorsuch probed Elster’s attorney, Jonathan Taylor.

“That might be the case; it can happen,” Gorsuch continued. “But you’ve got to come up with a pretty good argument, right?” 

Justice Brett Kavanaugh similarly told Taylor, “the history here would suggest that something like this is appropriate.”

Elster’s slogan references an infamous 2016 Republican presidential debate moment, when Trump defended his hand size after Sen. Marco Rubio (R-Fla.) made fun of it. The personal tit-for-tat came after Trump dubbed Rubio as “Little Marco” during the campaign.

“He referred to my hands, 'If they are small, something else must be small,'” Trump said during the debate. “I guarantee you there is no problem. I guarantee.”

Few justices mentioned Trump by name during the argument — though the attorneys frequently did — as they waded into the First Amendment case.

Justice Amy Coney Barrett, who raised concerns about the case’s potential impact on copyright law, invoked Trump’s name in concocting a hypothetical about an author trying to copyright a “Trump too small” book that “details Trump's pettiness over the years and just argues that he's not a fit public official.” Barrett is one of three sitting justices to be appointed by Trump during his first term.

In recent years, the Supreme Court struck down two neighboring federal trademark restrictions on free speech grounds but did so only after finding the provisions discriminated against speakers’ viewpoints.

In the “Trump too small” case, however, the Justice Department argues the provision at issue is viewpoint-neutral. 

The government argues that the provision should be treated as a condition on a government benefit, rather than a simple restriction on speech, which would mean it only needs to clear a lower legal hurdle.

“Section 1052(c) imposes a condition on a federal benefit, not a restriction on speech. Even if Mr. Elster cannot register the mark ‘Trump too small,’ he can sell shirts with that slogan,” Deputy U.S. Solicitor General Malcolm Stewart told the justices.

But Taylor, Elster’s attorney, disagreed with the government’s test and said the provision should be considered a content-based and speaker-based restriction on speech.

“Once that test is rejected, the clause cannot survive,” Taylor said. “The sole interest that it sought to serve was protecting the feelings of famous people, but that is not a legitimate reason to burden protected speech, much less one that can satisfy scrutiny.”

Justice Elena Kagan, one of many justices who seemed skeptical of allowing the trademark, said she could cite “many cases” showing that the government could give a benefit to some and not others as long as it’s not viewpoint-based.

“And you don’t have any cases that go the other way,” Kagan questioned Taylor.

Justice Samuel Alito made clear to Stewart, however, that he wouldn’t uphold the provision under that theory, pointing to a previous trademark opinion he wrote espousing such a view. 

“I mean, you don’t need my vote to win your case,” Alito said. “I’m trying to see if you have any argument that — maybe you’ve just decided, ‘Well, Alito is a lost cause here’ — whether you have any other argument that doesn’t require me to accept either of those propositions.”

Wednesday also marked Stewart’s 100th argument at the high court. Chief Justice John Roberts marked the occasion before the court adjourned for the day, recalling when he was in private practice 23 years ago and unanimously lost a Supreme Court case to Stewart.

“I was just nine votes short of a unanimous result,” Roberts joked.