SCOTUS: 'Trump Too Small' Can't Be Trademarked

Ruling on slogan was unanimous but opinions differed
By Rob Quinn,  Newser Staff
Posted Jun 13, 2024 4:18 PM CDT
SCOTUS Rejects Effort to Trademark 'Trump Too Small'
The Supreme Court building is seen on Thursday, June 13, 2024, in Washington.   (AP Photo/Mark Schiefelbein)

If you want to create merchandise with the slogan "Trump too small," the Supreme Court is not going to stand in your way. In a unanimous ruling issued Tuesday, the court sided with the Biden administration in a trademark case involving the slogan, CNN reports. Steve Elster, a lawyer who had sought to trademark the phrase, argued that his First Amendment rights were violated when his application was rejected. The administration said Elster is free to use the phrase, but trademark law doesn't allow trademarks that use a person's name without their consent, reports the Washington Post.

  • "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 majority opinion. "We conclude that a tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fits within that tradition," wrote Thomas. He said the ruling was narrow and didn't address broader trademark issues, the Post reports.

  • Other justices agreed with the ruling but cited different reasons in 53 pages of opinions, the AP reports. Justice Amy Coney Barrett said the case could have been dealt with through past court precedent instead of looking at the history and tradition of trademark law. Justice Sonia Sotomayor criticized "the indeterminacy of the court's history-and-tradition inquiry, which one might aptly describe as the equivalent of entering a crowded cocktail party and looking over everyone's heads to find your friends," per the New York Times.
  • Elster has been selling T-shirts with the "Trump too small" slogan for years and he is free to continue doing so. "The mark criticizes Trump by using a double entendre, invoking a widely publicized exchange from a 2016 Republican primary debate in which Trump commented about his anatomy, while also expressing Elster's view about 'the smallness of Donald Trump's overall approach to governing as president of the United States," his attorneys said in court papers.
  • The Post reports that there was laughter in the court when Thomas quipped about the different opinions behind the ruling. "I'm quite a coalition builder," he said.
(More US Supreme Court stories.)

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