WASHINGTON (CN) — A lawyer wants the Supreme Court to allow him to profit from making fun of former President Donald Trump.
This coming week, Steve Elster’s fight to trademark “Trump too small” on T-shirts will be argued in front of the nine justices — three of which were nominated to the high court by the very man Elster seeks to gibe.
The joke traces its origins to the 2016 U.S. presidential primaries, when the size of Trump’s hands turned into a national joke. Senator Marco Rubio was seemingly unimpressed with Trump’s characterization of him as “Little Marco,” throwing out his own insult.
“You know what they say about men with small hands,” Rubio quipped during a campaign stop.
Trump took the liberty of clearing the issue up at the next presidential debate.
“I guarantee you there’s no problem,” Trump said while showing his hands to the audience.
The viral moment inspired Elster to create shirts and hats emblazoned with “Trump too small.” Alongside the double entendre, Elster planned to include an illustration of a derogatory hand gesture as political commentary about “the smallness of Donald Trump’s overall approach to governing as president of the United States.”
Although those involved in the matter might appreciate the Supreme Court’s seal of approval over who bested the other, the justices are unlikely to comment on the debacle.
“Despite outward appearances, this case is really not about Trump or the size of his policies or (body parts),” Fara Sunderji, a trademark attorney with Dorsey & Whitney, said.
Instead, the justices’ arguments on Wednesday will cover the intersection between trademark law, the First Amendment, and rights to privacy.
Elster wanted to trademark his idea and although it was unique, the U.S. Patent and Trademark Office denied his request. The government cited a section of trademark law that prohibits marks on public officials' names without their consent. According to the government, this is a way to avoid confusing customers who might think the shirt was connected to Trump himself.
Although Elster argued the message on the shirt should be enough to tell customers Trump had no hand in making the product, the appeals board still denied Elster’s mark because it needed to protect Trump’s rights to privacy and publicity.
The federal circuit did not see eye to eye with that reasoning, reversing and finding that Elster’s free speech rights had been violated.
The government appealed to the Supreme Court, asking if the First Amendment is violated when the patent office refuses to offer trademarks that contain criticism of a government official. According to the government, the patent office uses a viewpoint-neutral condition when offering trademarks.
“As a viewpoint-neutral bar on federal trademark registration, Section 1052(c) is a condition on a government benefit, not a restriction on speech,” U.S. Solicitor General Elizabeth Prelogar wrote. “Refusal of registration under Section 1052(c) does not limit the rights of trademark owners to use their marks in commerce or to engage in whatever speech they wish. The only effect of the refusal is to deny an owner the benefits — i.e., additional mechanisms to prevent use of the same mark by competitors — that federal registration provides.”
Elster says Congress’ desire to protect important people’s names has allowed them to avoid criticism.
“So, under the clause, JOE 2020 has been registered, but not ‘No Joe in 2024,’” Jonathan Taylor, an attorney with Gupta Wessler representing Elster, wrote. “HILLARY FOR AMERICA has also been registered. But not ‘Hillary for Prison 2016.’ And BIDEN PRESIDENT is registered, while ‘Impeach 46’ was denied.”
Both sides of the aisle argue siding with the other stifles speech. The government says allowing these kinds of trademarks will chill speech by giving one person a monopoly over the criticism.
“The anomalous effect of the court of appeals’ decision is to vest respondent with a First Amendment right to prevent others from speaking and to obtain the government’s assistance in that endeavor, notwithstanding Congress’s decision to exclude respondent’s own mark from eligibility for the benefits that federal registration confers,” Prelogar wrote. “And it is particularly strange to treat the political character of respondent’s message as a factor supporting that result.”
Elster argues that not receiving a trademark because of the content of his speech is itself an effort to chill speech.
“Because no one would ever consent to the registration of speech that insults them, the clause effectively precludes the registration of all marks that disparage or criticize living people,” Wessler wrote. “That viewpoint-based effect only further reinforces the need for scrutiny.”
The Motion Picture Association of America weighed in on the debate, urging the justices to avoid a broad ruling that could stifle its ability to create expressive works.
“If people could wield the right of publicity as a veto against their depiction in expressive works, then filmmakers would be required to obtain the consent of every living person they portray on film, likely by paying them for the privilege,” Susan Kohlmann, an attorney with Jenner & Block representing the group, wrote. “Some individuals wouldn’t grant permission at any price, rendering certain works about real people impossible to make.”
The justices will hear oral arguments in the case on Nov. 1.
Follow @KelseyReichmann
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