The recent US Supreme Court decision blocking the registration of the “Trump Too Small” trademark has shed light on deeper constitutional disagreements within the bench. While all nine justices concurred that the “names clause” in the Lanham Act, which prohibits registering trademarks that refer to living individuals without consent, does not breach the First Amendment, their methodologies diverged significantly (Bloomberg Law).
The justices’ consensus underscores the viewpoint-neutral nature of the clause compared to previous provisions deemed unconstitutional in 2017 and 2019. Justice Clarence Thomas based his majority opinion on historical contexts preceding federal law, creating a fissure with conservative Justice Amy Coney Barrett and the liberal justices who called for a focus on the purpose of trademark statutes and free speech precedent.
Harvard Law professor Rebecca Tushnet captures this sentiment, noting that the tension is less about trademark law itself and more about “larger issues of judicial methodology.” This reflects broader themes that may impact future rulings on issues such as gun control and reproductive rights, remarked trademark attorney Theodore H. Davis Jr. of Kilpatrick Townsend & Stockton LLP.
Disputes over historical versus purpose-based interpretations were evident in the case’s procedural history. The US Patent and Trademark Office initially denied the trademark application, citing the names clause. The Federal Circuit reversed that decision, referencing previous Supreme Court rulings that struck down bans on “disparaging” and “scandalous” trademarks. Thomas’s majority opinion, supported by Justices Alito, Gorsuch, Roberts, and Kavanaugh, leaned on historical ties predating federal law, while Barrett emphasized evaluating the clause’s fit within trademark law’s objectives.
Subsequent concurring opinions highlighted this divide. Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, argued for sticking to trademark law and First Amendment precedent rather than broad historical analysis. Critiquing Thomas’s historical focus, Sotomayor warned of drawing subjective conclusions from selective historical instances, echoing concerns she attributed to the late conservative Justice Antonin Scalia.
University of San Diego law professor Lisa Ramsey pointed out that both history and purpose approaches carry implications for trademark laws like trademark dilution, which lacks a deep historical basis and isn’t strictly about consumer confusion. Tushnet further generalized the broader implications of the opinions beyond trademark law, suggesting these methodological disputes can cause “doctrinal chaos” in First Amendment and defamation law applications.
As the court continues its navigation through complex legal landscapes, these methodological rifts are poised to influence future rulings profoundly. The “Trump Too Small” trademark ruling is just one battleground in an ongoing judicial debate over how to interpret constitutional rights and statutory obligations.