The Supreme Court Examines Trademark Rights in the ‘Trump too small’ Case

Yet another Supreme Court case has brought former President Donald Trump into focus. On Wednesday, the justices will deliberate on a trademark request by a California resident, Steve Elster, who seeks to trademark the phrase “Trump too small,” aimed at ridiculing the former president and potential GOP candidate for the 2024 election. The phrase is intended for use on T-shirts.

On the heels of a day devoted to cases related to social media that also touched on Trump, the Department of Justice has aligned with Trump, suggesting that the court should reject Elster’s trademark application. According to government officials, although the phrase “Trump too small” can be utilized, it should not be trademarked without Trump’s consent. A federal appellate court, however, contends that the denial of the trademark application infringes upon First Amendment rights.

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Donald Trump’s children, Don Jr. and Eric, are set to testify in a fraud trial that could jeopardize the family’s business interests. Trump erroneously mispronounces the name of an Iowa city during a campaign stop, yet insists the state would never vote against him. Legal experts debate whether the Constitution’s ‘insurrection’ clause could bar Trump from participating in the 2024 election.

The Supreme Court has not shied away from Trump-related matters in the recent past, having heard cases involving Trump’s allegations of electoral fraud in the 2000 election, as well as his attempts to protect his tax records from Congressional scrutiny and New York prosecutors. Additionally, the court may be called upon to determine whether Trump is eligible to run for the presidency again due to his involvement in the January 6, 2021 attack on the U.S. Capitol.

In the case at hand, the Justice Department supports the government’s initial decision to deny Elster’s trademark. The phrase itself harks back to a memorable 2016 campaign altercation between Trump and his Republican competitor, Florida Senator Marco Rubio. Rubio had mocked Trump’s hand size, leading Trump to defend himself in a televised debate.

Over the last six years, the justices have twice invalidated federal laws that prohibited trademarks considered either scandalous, immoral, or disparaging. The current case revolves around another aspect: whether a trademark application should be rejected if it features the name, portrait, or signature of a living individual without their written consent.

Elster’s legal team argues that this provision should be struck down on the same grounds as previous cases, as it contravenes the First Amendment by disallowing the registration of a politically critical slogan about Trump without his approval. They argue that this effectively bans any trademarks critical of public figures while allowing them to trademark flattering messages about themselves.

The government retorts that it should not be compelled to incentivize someone aiming to capitalize commercially on another individual’s identity.

A verdict in the case, formally known as Vidal v. Elster, 22-704, is anticipated by early summer.

Frequently Asked Questions (FAQs) about Supreme Court Trademark Case

More about Supreme Court Trademark Case

• Supreme Court Upcoming Cases
• Trademark Law and the First Amendment
• Department of Justice Official Statement on the Case
• Federal Appeals Court Decision on “Trump too small”
• Supreme Court’s History of Trump-Related Cases
• First Amendment and Free Speech Rights
• Vidal v. Elster, 22-704 Case Information
• 2016 Presidential Campaign Debates Between Trump and Rubio