Mock Donald Trump’s masculinity all you want. But if you call it “too small”, you won’t be able to register it.
So said the Supreme Court on Thursday in a decision which combined First Amendment law, a long-standing trademark rule, and a childish insult to the former president.
The case was brought by a California lawyer seeking a federal trademark for the exclusive right to use the phrase “Very small Trump” on t-shirts and hats. The U.S. Patent and Trademark Office denied his request because federal law prohibits trademarks that use the names of living people without their consent.
The lawyer, Steve Elster, argued that the ban violates his free speech rights.
The high court unanimously disagreed – but the justices split into different camps on why.
Judge Clarence Thomas wrote an opinion which was largely joined by most of his conservative colleagues and emphasized a long tradition of allowing individuals control over trademark-type protections related to their names.
In agreement, Judge Amy Coney Barrett wrote that she saw less relevance to the story, but ultimately concluded that the restriction passes the constitutional test. Each of the three liberal justices agreed with at least part of Barrett’s concurrence.
Denial of the trademark to Elster does not prohibit him from making or selling “Trump Very Small” merchandise. Without any trademark protection for the phrase, other Trump tormentors can do so as well.
The insult “Trump too small” originates from an exchange of insults between Trump and the senator. Marco Rubio of Florida when the two were rivals for the 2016 Republican presidential nomination.
Trump has often derided Rubio as “Little Marco,” and in response, during a campaign stop, Rubio drew attention to the modest size of Trump’s hands.
The exchange led Trump to defending the size of his hands during a Fox News debate in March 2016 and recognize the sexual implications of Rubio’s statement.
“Look at these hands! Are they small hands?” Trump said as he raised his hands for viewers to see. “And he said to my hands: ‘If they’re small, something else must be small.’ I assure you there’s no problem – I guarantee it.”
Rubio was much more conciliatory toward Trump while serving as president and in recent years. The Florida senator is now considered a potential vice presidential pick for Trump as he tries to win back the White House in November.
The high court ruling on Thursday referred to the meaning of the phrase “Trump too small” only in vague terms. Thomas’s opinion noted that the trademark Elster sought was the use of provocation “accompanied by a hand gesture.”
Justice Sonia Sotomayor’s concurrence, joined by her two liberal colleagues, cited a legal document in which Elster said his trademark proposal was intended to “convey that some characteristics of President Trump and his policies are diminutive.”
