A California resident’s efforts to trademark the phrase “TRUMP TOO SMALL” is now officially over due to protections against trademark registrations afforded by federal law, which prohibit trademark registrations of personal names; and because it was clearly intended to be political satire.
This case was decided Thursday by The United States Supreme Court, who ruled that while the First Amendment allows for free speech, it does not grant a person ownership of something they have said (i.e., thus creating a valid trademark).
History: Political Satire v. Trademark Law
In the case of Vidal v. Elster, Steve Elster applied to register the slogan in connection with a line of T-shirts featuring a hand gesture signifying “small” because of a reference to Senator Marco Rubio’s jab at then-candidate Donald Trump during the 2016 election campaign and a list of Trump’s various “small” policies printed on the back of the shirts.
The (USPTO) rejected this trademark application on two separate occasions pursuant to the Lanham Act, which prevents the registration of a trademark that identifies a living individual without their prior consent.
Justice Clarence Thomas wrote the Court’s opinion and stated that trademark law protects the goodwill an individual has built up in their name and provides a means of identifying the source of goods:
“The First Amendment does not permit a party to use the goodwill that was created by another party in their name.”
The justices’ key points:
No stifling of speech: The justices recognized that there are no limitations on what Elster can do in terms of printing or selling shirts. The justices ruled only that Elster cannot have exclusive legal rights to use the phrase.
Consent is required: Justice Sonia Sotomayor pointed out that, since the government is not stopping Elster from selling the shirts, Elster is not experiencing “traditional infringement” on his freedom of speech.
Neutral viewpoint: The law applies equally to everyone, and the use of the trademark is irrelevant to whether the trademark is positive or negative about the person in question.
The Following Addresses of the Court Regarding the Constitutionality of the Lanham Act and What it Means for Future Litigation Involving Trademarks
The Court ruled that the Lanham Act restricts trademarks that include:
The Name, Portrait, or Signature of a Living Person: In other words, a trademark can’t be used as an identifier for a specific individual who is still alive unless you have received written permission from that person.
False Suggestion of a Connection: The Lanham Act also prohibits a trademark from falsely suggesting that it has a connection to an individual person.
In terms of the future, the recent ruling does validate the existence of individuals who wish to use the federal statutes to protect their “name brand”; however, the Court did not rule on the issue of viewpoint neutrality or whether, in general, all restrictions against trademarks are unconstitutional; thus, “Trump Too Small” shirts will continue to be sold, but they will not be able to display the “®” symbol.
