The dispute of “Trump too small” trademark reignites a series of First Amendment challenges to the Lanham Act, which prohibits the registration of defamatory or offensive marks. This is the third occurrence following Matal v. Tam and Iancu v. Brunetti, in which marks disparaging Asian Americans and immoral or scandalous marks (“FUCT”), respectively, were contested before the Supreme Court.
The matter at hand in Vidal v. Elster is a provision within the Lanham Act that prohibits marks which “identif[ies] a particular living individual” without their written consent. The case began when Steve Elster sought to trademark the phrase “Trump too small” for use on T-shirts as a form of political satire stemming from a comment made by Senator Marco Rubio during the 2016 presidential debates.
As articulated by U.S. Solicitor General Elizabeth Prelogar on behalf of the Patent and Trademark Office (PTO), the Act does not practice viewpoint discrimination. She asserts that the statute uniformly blocks the registration of marks identifying a person irrespective of the stance conveyed by the mark. The government contested that the denial of registration does not restrain Elster from using the mark in commerce or protecting it from unauthorized use.
Contrary to the government’s argument, Elster maintains that the Act clearly discriminates based on the content of speech and the identity of the speaker – illustrating that while Trump could register this mark himself, Elster could not. Elster’s argument points out that the provision’s practical enforcement is viewpoint-discriminatory: Marks pertaining to Trump can only be registered by those who convey messages approved by him.
Given the history of the Supreme Court finding trademark registration limitations questionable in Tam and Iancu, Elster’s case stands on strong precedence. With the speech in this case being at the core of political speech and the non-viewpoint neutral nature of the statute, it is anticipated that several justices might challenge the government’s position. However, the preferred mode of analysis amongst the justices has previously varied; therefore, only the proceedings’ culmination will bring clarity on this matter. [Read More Here]