US activist seeks ‘Trump Too Small’ trademark for T-shirts, plea rejected
The United States Supreme Court ruled unanimously against a petition by a California-based activist seeking to trademark the phrase “Trump is too short” for printing on merchandise.
The U.S. Supreme Court on Thursday rejected a political activist’s attempt to trademark the phrase “Trump Too Small” — an apparent criticism of former President Donald Trump — and ruled that the federal Trademark Office did not violate the First Amendment by rejecting his petition.
The court ruled unanimously in favor of the U.S. Patent and Trademark Office in dismissing an application filed by California-based activist Steve Elster, who had sought exclusive use of the phrase on T-shirts and possibly other merchandise.
The case revolved around a provision of the 1946 federal trademark law that prohibits the registration of any trademark that uses the name of a living person without their written consent. The main issue was whether free speech protections outweigh the US Patent and Trademark Office’s concerns about Trump’s rights to criticize public figures, as determined by the country’s lower court.
The Supreme Court justices unanimously upheld the constitutional validity of the “names clause” provision, but had different reasons behind their decision.
“Restrictions on the trademarking of names have a long history,” conservative Justice Clarence Thomas, writing on behalf of the majority, was quoted as saying by news agency Reuters.
“Such restrictions have historically been based on the assumption that a person has ownership of his or her name, and cannot be denied the use of that name because of someone else’s trademark,” Justice Clarence Thomas said.
In 2018, Elster applied for a trademark for a shirt depicting the hand gesture. The design was inspired by a memorable exchange between Donald Trump and Senator Marco Rubio during a 2016 Republican presidential debate. Trump had mocked Rubio by calling him “little Marco,” to which Rubio responded by saying Trump has unusually small hands.
“Look at those hands. Are they small hands?” Trump asked in the debate. “If they’re small, something else is going to be even smaller. I guarantee you, there’s no problem with that. I guarantee it.”
Elster said “Trump Too Small” expressed his opinion of “the smallness of Donald Trump’s overall approach to governing”. Trump was president when the song was applied.
The trademark office rejected Elster’s application. However, the U.S. Court of Appeals for the Federal Circuit in Washington ruled in Elster’s favor, stating that the activist’s First Amendment right to criticize public figures outweighs the government’s interest in protecting those celebrities’ privacy and publicity rights.
As a result, Elster’s application remained on hold at the Trademark Office awaiting the Supreme Court’s decision.
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