June 13th 2024.
The US Supreme Court has recently made a decision regarding a political activist's attempt to trademark the phrase "Trump Too Small." The court has rejected the attempt, stating that the federal trademark office did not violate the First Amendment when it declined to register the mark.
Justice Clarence Thomas, who wrote the majority opinion for a unanimous court, explained that trademarks containing names can be restricted, as this restriction serves established principles. He also referenced a provision of the federal trademark law that was at the center of the case.
"We see no reason to disturb the longstanding tradition of restricting the use of another's name in a trademark," Thomas added later in his opinion.
The dispute leading up to this decision can be traced back to a heated exchange between then-candidate Donald Trump and Florida GOP Senator Marco Rubio during the 2016 Republican presidential primary. During a debate, Rubio joked about the size of Trump's hands and made a suggestive comment. Trump responded by stretching out his hands for the audience to see and denying Rubio's suggestion.
This incident sparked a series of headlines, including one from CNN that read "Donald Trump defends size of his penis" and another from Vanity Fair that said "Donald Trump Assures America He is Well-Endowed."
Two years later, attorney Steve Elster attempted to register "Trump Too Small" as a trademark for use on T-shirts. He stated that the mark was meant to criticize Trump and his policies by using a double entendre. However, the US Patent and Trademark Office (USPTO) refused registration, citing a federal law that prohibits using a living person's name without their consent.
Elster appealed to the USPTO's Trademark Trial and Appeal Board, but they also refused registration. A federal appeals court, on the other hand, ruled that the refusal violated Elster's First Amendment rights.
The question before the Supreme Court was whether this prohibition could be reconciled with the First Amendment. Justice Amy Coney Barrett, in a concurring opinion, agreed with the court's decision but not its reasoning. She believed that the case could have been decided based on the court's past precedent.
Justices Sonia Sotomayor and the other two liberal justices also wrote concurring opinions, stating that they would have applied the court's First Amendment precedent to decide the case.
During oral arguments, the justices seemed to lean towards the trademark office's side, with some expressing doubts that Elster's free speech rights had been infringed upon. Ultimately, the court upheld a provision of the Lanham Act, a federal trademark law, that prohibits using someone else's name without their consent.
It is worth noting that in two previous cases, the court has expanded First Amendment protections in similar situations. In 2017, they ruled in favor of an Asian-American musician who wanted to trademark the name of his rock band, "The Slants." Two years later, they struck down a provision of the Lanham Act that prohibited registering "immoral" or "scandalous" trademarks.
In conclusion, the US Supreme Court has rejected the attempt to trademark "Trump Too Small," citing a federal law that prohibits using a living person's name without their consent. The court's decision is in line with previous cases that have expanded First Amendment protections in similar situations.
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