Supreme Court rules man can’t trademark ‘Trump too small’ 

A California attorney’s bid to trademark “Trump too small” ended Thursday when the Supreme Court tossed his free speech challenge to his rejected application.

Steve Elster, the attorney, had hoped to trademark the reference to a suggestive, infamous 2016 Republican debate moment to sell on T-shirts and other merchandise.

In a majority opinion authored by conservative Justice Clarence Thomas, the Supreme Court instead sided with the Biden-era Justice Department, which defended the federal trademark office’s refusal to accept Elster’s application. Trump was not a party to the case.

Elster’s application was rejected under a provision of federal law prohibiting the registration of marks that identify a living person without their consent.

“Elster contends that this prohibition violates his First Amendment right to free speech. We hold that it does not,” Thomas wrote. 

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

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

In paperwork filed in during his attempted registration, Elster in 2018 wrote that his mark was “political commentary about the smallness of Donald Trump’s overall approach to governing as president of the United States and the smallness of his approach to specific issues as president.”

He ultimately brought his fight to court, winning before the District of Columbia U.S. Circuit Court of Appeals by contending the restriction violated his free speech protections under the First Amendment. The Justice Department then appealed to the Supreme Court. 

Elster said in a statement he was disappointed by the outcome but would continue to sell his shirts.

“The decision was disappointing but not unexpected given the oral arguments,” Elster said in a email after the opinion was handed down. “Trump previously weaponized his own trademarks by intimidating other anti-Trump t-shirt sellers, so any concerns about a trademark being misused to chill political speech with empty legal threats already exists and continues unabated with this decision.”

Though all nine justices agreed the provision was constitutional, the Supreme Court’s decision was fractured, with various justices joining portions of the four different opinions. 

Much of the disagreement concerned whether history and tradition can establish that prohibitions like the one at hand are constitutional. Thomas’s majority opinion identified a “longstanding tradition” of restricting the use of another’s name in a trademark. 

“This is wrong twice over,” conservative Justice Amy Coney Barrett, who only joined portions of Thomas’s opinion, wrote separately. 

“First, the Court’s evidence, consisting of loosely related cases from the late-19th and early-20th centuries, does not establish a historical analogue for the names clause,” Barrett continued, joined by the courts three liberal Justices Sonia Sotomayor, Ketanji Brown Jackson and Elena Kagan.

“Second, the court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.”

Thursday’s decision follows two cases in which the high court went the other way and struck down neighboring provisions of federal law that similarly placed restrictions on what could be trademarked. In those cases, the justices found the provisions discriminated against speakers’ viewpoints. 

President Biden’s administration argued the provision at the center of the case was viewpoint-neutral, insisting the restriction doesn’t need to clear the same legal hurdle as a result. Instead, the Justice Department said the provision should be treated as a condition on a government benefit, not a simple restriction on speech.

The Biden administration was backed by the International Trademark Association and consumer advocacy group Public Citizen. Elster was backed by the Foundation for Individual Rights and Expression, a free speech group that focuses on college campuses, and Manhattan Institute, a conservative think tank.

Updated 12:50 p.m.