Supreme Court will hear attempt to trademark ‘Trump Too Small’

The Supreme Court on Monday said it will consider whether a California attorney has a free-speech right to trademark the phrase “Trump Too Small” for use on T-shirts that mock the former president and build on locker-room taunts from the 2016 Republican presidential primary.

Let the double entendres begin.

The Biden administration asked the justices to uphold the U.S. Patent and Trademark Office’s rejection of attorney Steve Elster’s application because federal law disallows trademarks that use a person’s name without their consent.

But a unanimous panel of the U.S. Court of Appeals for the Federal Circuit said in 2022 that prohibition on violating a person’s privacy was outweighed by Elster’s First Amendment right to criticize public officials.

“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” wrote Judge Timothy B. Dyk. “As a result of the President’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-President’s approach to governance, the government has no interest in disadvantaging Elster’s speech.”

Elster, the ruling said, “aims to convey that some features of President Trump and his policies are diminutive.”

The case will be heard in the term that begins in October. The former president is not a party to this one.

The idea for such a “Trump Too Small” the T-shirt came to Elster after a memorable exchange of taunts between Donald Trump and Sen. Marco Rubio (R-Fla.), who at the time were rivals for the 2016 Republican presidential nomination.

Tired of Trump’s dismissal of him as “Little Marco,” Rubio criticized the size of Trump’s hands during a campaign stop.

“You know what they say about men with small hands,” Rubio told a crowd in Salem, Va., in February 2016, pausing afterward to let the audience laugh. “You can’t trust ’em.”

Trump responded during a televised presidential debate days later with a remarkable claim about the size of his hands, and other extremities.

“Look at those hands, are they small hands?” Trump said, raising them for viewers to see. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”

The “Trump Too Small” case is the latest in a line of Supreme Court cases involving challenges to trademark denials. In each, those seeking registration successfully argued that the government violated their speech rights in denying requests the trademark office viewed as offensive.

In Matal v. Tam, government officials refused an Asian American band’s request to trademark their name “The Slants,” saying it would violate a ban on disparaging marks. In Iancu v. Brunetti, the trademark office denied registration to a clothing company called “FUCT” because of a prohibition on immoral or scandalous marks.

“In each case, this Court concluded that the restriction significantly burdened private speech and violated the First Amendment,” Elster’s attorneys wrote.

But Solicitor General Elizabeth B. Prelogar said that in both of those cases, the splintered court failed to settle an important issue: whether denial of the mark is a violation of free speech or simply a condition the government can impose for the privilege and protections that come with a trademark.

Elster is free to use the phrase “Trump Too Small” however he wants, Prelogar wrote, but the government does not have to give him the protections that come with trademark registrations.

Living people have a valuable right to their own names, Prelogar wrote. Elster’s “unquestioned First Amendment right to criticize the former President does not entitle him to enhanced mechanisms for enforcing property rights in another person’s name.”

In fact, Prelogar said, registering the trademark to Elster could “chill” political speech rather than expand it. “After all, a trademark gives its owner the right to prevent others from using” the phrase.

Trump’s “guarantee” during the debate gave rise to headlines unseen in any previous presidential campaign.

Weeks later, questioned by The Washington Post editorial board about his decision to raise the issue during the debate, Trump said “I had no choice” but to respond to Rubio’s derisive comment.

“My hands are normal hands,” he said then. Recounting the feedback he was getting in the aftermath of Rubio’s jibe, Trump said, “I was on line shaking hands with supporters and one of the supporters said, ‘Mr. Trump, you have strong hands, you have good size hands.’ And then another one would say, ‘Oh, you have great hands, Mr. Trump. I had no idea.’”

The case is Vidal v. Elster.