The Supreme Court on Thursday delivered a unanimous decision rejecting a California lawyer’s attempt to trademark the phrase “Trump too small.” The ruling, while clear on the bottom line, revealed a deep fracture among the justices on the rationale behind the decision.
The case revolved around a federal law that prohibits the registration of trademarks that identify a particular living individual without their written consent. The lawyer, Steve Elster, sought to trademark the phrase to convey a message about President Trump and his policies being diminutive. The phrase was inspired by an exchange between then-candidate Trump and Senator Marco Rubio during a 2016 presidential primary debate, where Rubio commented on Trump’s hands.
While the Patent and Trademark Office initially rejected Elster’s application, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled in his favor, citing First Amendment protections for political criticism. However, the Supreme Court ultimately disagreed, with Justice Thomas writing that the restriction did not violate the First Amendment based on historical evidence.
Justice Sonia Sotomayor, in a concurring opinion that bordered on dissent, criticized the court’s reliance on a history-based methodology introduced in a recent Second Amendment case. She expressed concerns about the indeterminacy of the approach and the confusion it could cause in lower courts.
The decision in Vidal v. Elster marks a departure from previous cases where the Supreme Court struck down provisions of the trademark law for discriminating based on viewpoints. While the majority found the challenged provision in this case to be constitutional, Justice Sotomayor raised alarms about the implications of the new methodology.
The ruling highlights the complex interplay between trademark law and the First Amendment, setting a precedent for future cases involving trademarks that reference living individuals. The debate among the justices underscores the ongoing challenges in balancing free speech rights with the protection of individuals’ identities in the realm of intellectual property.
