A California attorney wants to trademark the phrase “Trump Too Small” for use on t-shirts that mock Donald Trump and echo taunts from the 2016 Republican primary.
The Supreme Court on Monday said it will consider whether a California attorney has a free-speech right to trademark the phrase “Trump Too Small” for use on t-shirts that mock the former president and build on locker-room taunts from the 2016 Republican presidential primary.
Let the double-entendres begin.
The Biden administration asked the justices to uphold the U.S. Patent and Trademark Office’s rejection of attorney Steve Elster’s application because federal law disallows trademarks that use a person’s name without their consent.
But a unanimous panel of the U.S. Court of Appeals for the Federal Circuit in 2022 said that prohibition on violating a person’s privacy was outweighed by Elster’s First Amendment right to criticize public officials.
“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” wrote Judge Timothy B. Dyk. “As a result of the President’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-President’s approach to governance, the government has no interest in disadvantaging Elster’s speech.
