WASHINGTON — The Supreme Court on Thursday rejected a California lawyer’s attempt to trademark the phrase “Trump too small,” a reference to a crude joke made about former President Donald Trump.
The court ruled unanimously in favor of the US Patent and Trademark Office for its decision to reject the application filed by Steve Elster. In doing so, the court rejected the U.S. Court of Appeals’ decision for the Federal Circuit’s decision.
Elster said in an email that the decision was “disappointing but not unexpected” and promised to continue selling T-shirts with the slogan even without the trademark.
Justice Clarence Thomas wrote for the court that restrictions on people registering certain names as trademarks do not violate the First Amendment of the Constitution.
The law in question “is part of a common law tradition regarding trademarking of names. We see no reason to upset this long-standing tradition, which supports restricting the use of another person’s name in a trademark,” Thomas wrote.
The phrase “Trump too small” is a reference to a crude joke Sen. Marco Rubio, R-Fla., made about Trump during the 2016 presidential primaries. Rubio joked about what he said were Trump’s small hands, adding, “And you know what they say about guys with small hands.”
Elster, a labor lawyer and progressive activist, applied to trademark “Very Small Trump” — a double entender intended to imply a correspondingly small penis — with the trademark office in 2018. The slogan appears on the front of the t-shirt Elster created, with “ Trump’s package is too small” on the back.
Elster said in his application that he wanted to spread the message that “some characteristics of President Trump and his policies are diminutive.”
But the trademark office rejected his request on the grounds that the public would immediately associate the word “Trump” with the then-president. Under established law, Trump’s written consent would be required, the office concluded.
Elster argued that his free speech rights would be violated if he failed to register a trademark that criticized a public figure. The appeals court ruled in his favor, saying his free speech rights under the First Amendment of the Constitution were violated.
The Biden administration, representing the trademark office, then appealed to the high court.
The Supreme Court agreed that there was no violation of freedom of expression. All nine justices agreed with the result, although they differed somewhat on the rationale, with three justices writing separate opinions and some joining only parts of Thomas’s opinion.
The trademark office did not respond to a request for comment.
The case is the latest of several the Supreme Court has taken recently regarding free speech rights in the trademark context.
In 2017, the court struck down a ban on trademarks featuring derogatory language, handing a victory to an Asian-American rock band called The Slants. Two years later, the court rejected the ban on trademarks based on immoral or scandalous words, ruling in favor of the clothing brand FUCT.
This story originally appeared on NBCNews.com read the full story
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