Supreme Court Grants Review For Free Speech Case Involving ‘Trump Too Small’ Trademark

The Supreme Court agreed on Monday to hear a free speech case involving a trademark that harkens back to a crude joke Republican Florida Sen. Marco Rubio made at former President Donald Trump’s expense during the 2016 election.

The case, Vidal v. Elster, stems from a T-shirt made by Steve Elster with the words “Trump too small,” a reference to Rubio’s joke about Trump’s “small hands” during a campaign rally in 2016, where he told the crowd “you know what they say about guys with small hands.” The United States Patent & Trademark Office declined to register Elster’s mark under Section 2(c) of the Lanham Act, which bans the registration of trademarks that include “a name, portrait, or signature identifying a particular living individual except by his written consent.”

U.S. Court of Appeals for the Federal Circuit reversed the decision in February 2022, finding the application of Section 2(c) to Elster’s mark “unconstitutionally restricts free speech in violation of the First Amendment.”

“The PTO’s refusal to register Elster’s mark cannot be sustained because the government does not have a privacy or publicity interest in restricting speech critical of government officials or public figures in the trademark context—at least absent actual malice, which is not alleged here,” the court found.

Ester stated during his registration request that he wanted to convey “that some features of President Trump and his policies are diminutive,” according to court documents. The back of the t-shirt states “Trump’s package is too small” along with a list of policy areas he is “small on,” including the environment, civil rights, immigrant rights, LGBTQ rights, workers’ rights, voting rights and affordable health care.

Ester argues in a brief filed with the Supreme Court that the statute “makes it virtually impossible to register a mark that expresses an opinion about a public figure—including a political message (as here) that is critical of the President of the United States.”

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