The U.S. Supreme Court has unanimously rejected an application to trademark the phrase “Trump too small” for use on T-shirts criticizing the former president. The court’s decision maintains the authority of the Patent and Trademark Office (PTO) to refuse such trademark registrations based on provisions of the Lanham Act, which prevent trademarks that identify “a particular living individual” without consent.
Steve Elster, who sought the trademark, argued that this provision violated his First Amendment rights. Nevertheless, the justices, though divided in their reasoning, collectively agreed that the PTO’s refusal did not infringe upon these rights.
Justice Clarence Thomas wrote the principal opinion for the court, supported by six justices, noting that the restriction was viewpoint-neutral but not content-neutral. He emphasized that while prior cases prohibited viewpoint-based discrimination in trademarks, this case involved a neutral stance as the PTO consistently rejected trademarks involving names of various political figures, such as “Welcome President Biden” and “Obama Pajama” (SCOTUSblog).
Justice Thomas supported the decision by referring to the historical context of content-based trademark restrictions. He asserted that the “names clause” aligns with long-standing legal traditions against using another person’s name in trademarks without consent.
Concurring opinions from Justices Brett Kavanaugh and Chief Justice John Roberts acknowledged potential future considerations of viewpoint-neutral, content-based trademark restrictions lacking historical justifications. Justice Amy Coney Barrett, joined by Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, critiqued the historical approach, proposing instead a doctrinal analysis of First Amendment implications.
Sotomayor, delivering the most pointed critique, likened the majority’s historical interpretation to selectively picking evidence at a “crowded cocktail party.” She argued that the refusal simply conditions a government benefit and does not impede Elster’s free speech or commercial activities.
As the briefings and arguments indicated, this case exemplifies ongoing tensions between First Amendment rights and trademark law. Future challenges to other provisions of the Lanham Act are likely, and equally contentious debates among the justices can be anticipated.