Supreme Court Blocks ‘Trump Too Small’ Brand Bid Referring to Crude Joke

WASHINGTON — The Supreme Court on Thursday rejected a California lawyer’s attempt to trademark the phrase “Trump too short,” a reference to a crude joke made about former President Donald Trump.

The court unanimously ruled in favor of the U.S. Patent and Trademark Office’s decision to deny Steve Elster’s application. In doing so, the court overruled the U.S. Court of Appeals’ ruling regarding the Federal Circuit’s ruling.

Elster said in an email that the decision was “disappointing but not unexpected” and pledged to continue selling T-shirts bearing the slogan even without the branding.

Justice Clarence Thomas wrote for the court that restrictions on people registering certain names do not violate the Constitution’s First Amendment.

The law in question “is part of a common law tradition regarding the registration of trademark names. We see no reason to disrupt this long-standing tradition, which supports the restriction of the use of another’s name in a trademark,” Thomas wrote.

The phrase “Trump too small” is a reference to a crude joke by the senator. Marco Rubio, Republican of Florida, spoke about Trump during the 2016 presidential primary. Rubio joked about what he said were Trump’s small hands, adding: “And you know what they say about guys with little hands.”

Elster, an employment lawyer and progressive activist, applied to register “Trump too small” — a double entender intended to insinuate a correspondingly small penis — with the trademark office in 2018. The slogan appears on the front of the T -shirt created by Elster. , with “Trump’s package is too small” on the back.

“Trump too small” t-shirtsCourtesy of Steve Elster

Elster said in his application that he wanted to send the message that “certain characteristics of President Trump and his policies are minimal.”

But the trademark office rejected his application on the grounds that members of the public would immediately associate the word “Trump” with the then-president. Under current law, Trump’s written consent would be required, the office concluded.

Elster argued that his free speech rights would be violated if he could not register a trademark criticizing a public figure. The appeals court ruled in his favor, saying his free speech rights under the Constitution’s First Amendment had been violated.

The Biden administration, representing the trademark office, then appealed to the high court.

The Supreme Court recognized that there was no violation of freedom of expression. All nine justices agreed on the outcome, although they differed somewhat on the rationale, with three justices writing separate opinions and some joining only parts of Thomas’ opinion.

The trademark office did not respond to a request for comment.

This case is the latest in a series of cases recently brought by the Supreme Court regarding free speech in the context of trademarks.

In 2017, the court overturned a ban on trademarks containing derogatory language, handing victory to an Asian American rock band called The Slants. Two years later, the court overturned the ban on brands based on immoral or scandalous remarks, ruling in favor of clothing brand FUCT.

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