WASHINGTON (CN) — The Supreme Court seemed uninterested Wednesday in altering decades of trademark law to allow a lawyer to have exclusive use of the slogan “Trump too small.”
“Some things you’re just not able to monopolize,” Justice Neil Gorsuch said.
Steve Elster wants the justices to overturn a government decision to block his trademark of “Trump too small,” which he planned to plaster on T-shirts and hats for a profit. The phrase harkens back to a viral moment during the 2016 Republican primary debate when Senator Marco Rubio made a joke about the size of Donald Trump’s hands. Trump took the insult personally, addressing the insult during a presidential debate.
The joke inspired Elster to use the double entendre as political commentary. Elster wanted to trademark the phrase, but the U.S. Patent and Trademark Office denied his application because marks with public officials’ names require consent.
An appeals board affirmed the office’s decision, but a federal circuit court reversed, finding Elster had a First Amendment claim. The government then turned to the Supreme Court to revive its policy.
The majority of justices appeared to be of the same mind as Gorsuch, favoring the government’s policy of not allowing trademarks on names without consent. Chief Justice John Roberts worried a ruling in favor of Elster would set off a trademark race.
“Presumably there will be a race for people to trademark Trump too this, Trump too that, whatever, and then particularly in the area of political expression, that really cuts off a lot of expressions other people might regard as important,” the George W. Bush appointee said.
Justice Sonia Sotomayor said the government was not restricting Elster’s speech because he could sell as many shirts with “Trump too small” on them as he wanted — he just couldn’t prevent others from doing so.
“It’s almost as if we’re becoming strait-jacketed by labels instead of looking at this as I do from first principles,” the Obama appointee said. “The question is, is this an infringement on speech? And the answer is no.”
Justice Samuel Alito, however, expressed some concern over the government’s arguments. However, he appeared clear on where his opinion fell among his colleagues.
“You don’t need my vote to win your case,” the Bush appointee said. “I’m trying to see if you have any argument or maybe you’ve just decided, well, Alito’s a lost cause here.”
Justice Amy Coney Barrett worried that the government’s argument could leave open a door that allows government officials to register unfavorable marks to make sure others cannot.
“He can’t register this, but there is a speaker-based discrimination,” the Trump appointee said. “Could Trump come in and register that trademark — obviously he can register it, he’s giving his consent — and then that trademark be valid so it stops Elster from having T-shirts or signs or anything that says it?”
The government said Trump would have to prove an intent to use any trademark he tried to register. Barrett noted that Trump could do a workaround for that requirement by creating the item in a very limited way.
At the core of the government’s argument is that the consent requirement to trademark an official’s name is a restriction on a federal benefit, not a First Amendment violation.
“The living individual clause simply restricts Mr. Elster’s ability to assert exclusive rights in another person’s name,” Malcolm Stewart, deputy solicitor general at the Department of Justice, said.
Elster argued the government was leveraging the policy to achieve a goal at odds with trademark law.
“Unlike the separate prohibitions on false association and marks likely to confuse or mislead, both of which are tightly connected to the purposes of trademark law and trademark registration, the government’s interest in discouraging marks because they hurt the feelings of public figures has nothing to do with the purposes of trademark registration.”
The justices will issue a ruling in the case before next summer.Follow @KelseyReichmann
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