Supreme Court takes last word in ‘Trump too small’ dispute

WASHINGTON (CN) — The Supreme Court agreed Monday to decide a trademark dispute over T-shirts emblazoned with the slogan “Trump too small," a reference to a flashpoint in the 2016 U.S. presidential primaries when the future president was ribbed about the size of his hands. 

Senator Marco Rubio initiated the joke during a campaign stop after Donald Trump had referred to the Florida Republican dismissively as “Little Marco.” 

“You know what they say about men with small hands,” Rubio pushed back.

The jab irked Trump, leading him to respond in a presidential debate. 

“I guarantee you there’s no problem,” Trump said raising his hands to the audience. “I guarantee.” 

Steve Elster saw the moment as an opportunity for political commentary, intending to make shirts and hats featuring the text “Trump too small.” In 2018 he tried to register for a trademark but was denied by the Patent and Trademark Office for violations of federal trademark law. 

According to the patent office, the pointed reference to Trump would violate a section of the Lanham Act that protects the names of living individuals without their written consent. 

“For more than 75 years, Congress has directed the USPTO to refuse the registration of trademarks that use the name of a particular living individual without his written consent,” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s petition. 

The government took the matter to the Supreme Court after the Federal Circuit ruled in Elser's favor.  

While Elster says the denial of his trademark would trample his free-speech rights, Prelogar says it instead protects the privacy and publicity of living people. 

“Because living persons have ‘valuable’ rights in their own names, the government has an interest in not promoting or associating itself with marks that ‘appropriate[] or commercially exploit[]’ a living person’s name ‘without his consent,’” Prelogar wrote.  

The government also argued the case would be a good vehicle to resolve a dispute the court punted on in prior cases: whether the Lanham Act bar on the registration of a trademark is a condition on a government benefit of a simple restriction on speech. 

Elster tried to persuade the justices not to take the appeal, claiming the government is wrong about the statute’s restrictions on speech. He said the law places a content-based restriction on speech. 

“As the government recognizes, these narrow facts rarely arise and may not arise again,” Jonathan Taylor, an attorney with Gupta Wessler, wrote in an opposition brief. “This is the only case to have decided section 2(c)’s constitutionality, and the government admits that it is ‘not aware of’ any such cases currently pending. A decision by this Court would thus likely have little practical impact beyond this case.” 

The statute, Elster argues, is unique from other protections because it does not focus on false or misleading connections with public figures but truthful remarks on presidents. 

“The statute makes it virtually impossible to register a mark that expresses an opinion about a public figure — including a political message (as here) that is critical of the President of the United States,” Taylor wrote. 

The court granted the government a writ of certiorari Monday with no commentary from the justices, as is custom. Taylor and the Department of Justice did not respond to requests for comment on the grant. 

Follow @KelseyReichmann

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit