Supreme Court says marketer is not entitled to a trademark for 'Trump too small' T-shirts

In yet another Trump case, the U.S. Supreme Court on Thursday ruled that the U.S. Patent and Trademark office correctly refused to grant a trademark for the phrase “TRUMP TOO SMALL.” In a unanimous vote, the court said that under federal law trademarks may not be granted involving the names of living individuals, without their written consent.

“Our courts have long recognized that trademarks containing names may be restricted. And these name restrictions served established principles," Justice Clarence Thomas wrote in the court's opinion. "This history and tradition is sufficient to conclude that the names clause — a content-based, but viewpoint-neutral, trademark restriction — is compatible with the First Amendment."

The decision was a loss for part-time Democratic activist Steve Elster, who contended that the living-person exception to the trademark law violated his right of free speech by treating speech about Trump differently from other speech that can be trademarked. The court, however, rejected that argument, noting that living individuals have some limited rights, even in the political arena, to prevent their names from being branded without their permission. The court noted that Elster can still market his “TRUMP TOO SMALL” T-shirts, but without the trademark protection.

The phrase “TRUMP TOO SMALL” stems from a memorable moment in the 2016 Republican presidential debates, during which Sen. Marco Rubio, R-Fla., made a crude joke about the size of Trump’s hands.

“And you know what they say about guys with small hands,” Rubio quipped.

Elster, an employment lawyer and progressive activist, applied to register “TRUMP TOO SMALL” with the trademark office in 2018. The slogan appears on the front of several T-shirts that Elster sells online for $39.99, with “Trump’s package is too small” also printed on the back. His application was rejected by the Patent and Trademark office, which concluded that Trump’s written consent would be needed, as required under a 1946 law called the Lanham Act.

The decision maintains the longstanding “living-individual rule” under the Lanham Act, which has governed trademark registration for decades. Proponents of the law, including the International Trademark Association, argue that it harmonizes trademark law with the right of publicity and privacy, preventing unauthorized use of individuals’ names in commercial contexts. Public Citizen further argues that disallowing trademark registration for politically charged phrases helps to facilitate freedom of expression by keeping such speech in the public domain, rather than granting individuals a legal right to exclude others from using the registered mark.

For most consumers, the line drawn by the court on Thursday will not make much difference. The trademark law does nothing to stop the use of a living person’s name. It only bars a trademark for such products. Take, for example, the vast array of merchandise marketed on line featuring the image and sayings of Justice Ruth Bader Ginsburg when she was alive. She didn’t give her permission for any of that—though she certainly enjoyed some of it. And the only consequence for those selling the merch was that their products had no trademark protection, and thus could be mimicked by competitors.