The U.S. Supreme Court on Thursday barred the registration of a federal trademark for the phrase “Trump too short” – an irreverent criticism of former President Donald Trump – rejecting a California lawyer’s claim that the refusal of the trademark violated his constitutional rights to free speech.
The justices reversed a lower court’s ruling that the U.S. Patent and Trademark Office’s rejection of Steve Elster’s application to register the mark for use exclusively on T-shirts violated the First Amendment of the Constitution of the United States.
The case involved a provision of the Federal Trademark Act of 1946 that prohibits the registration of any mark using the name of a living person without their written consent. At issue was whether free speech protections for criticism of public figures outweighed the U.S. Patent and Trademark Office’s concerns about Mr. Trump’s rights, as it had found. the court of first instance.
Mr. Biden’s administration has asserted that the law is a permissible condition for a government benefit and does not illegally stifle free speech because it prohibits recordings regardless of the viewpoint being conveyed. Mr. Elster argued that allowing public figures to trademark their own positive messages while preventing recordings that criticize them borders on viewpoint discrimination.
In 2018, Mr. Elster applied to register the mark to put on shirts – with an illustration of a mocking hand gesture – invoking an exchange between Mr. Trump and US Senator Marco Rubio during a debate between candidates for the Republican nomination for the 2016 presidential election. Earlier, Mr. Trump had insulted Mr. Rubio by calling him “little Marco”. Rubio countered that Mr. Trump had disproportionately small hands.
“Look at these hands. Are they small hands?” Mr. Trump asked during the debate. “If they’re small, something else must be small. I guarantee you there’s no problem. I guarantee it.”
Mr. Elster said “Trump Too Small” expressed his opinion about “the smallness of Donald Trump’s overall approach to governance.” Mr. Trump was president when the request was filed.
Mr Trump, who is now the frontrunner for the Republican nomination to take on Democratic President Joe Biden in the US election in November, is not personally involved in the matter and has not commented on it .
The trademark office rejected Elster’s application. But the federal appeals court in Washington agreed with Mr. Elster, finding that the government’s interest in protecting the privacy and publicity rights of public figures did not outweigh Mr. Elster’s right to criticize them, in accordance with the First Amendment.
Mr. Elster’s request remained pending at the agency pending the Supreme Court’s decision.
In recent years, the Supreme Court has struck down two trademark laws citing freedom of expression. She ruled in 2017 in favor of Asian-American rock band The Slants against banning trademarks that are “disparaging”, and in 2019 in favor of artist Erik Brunetti against banning “immoral” or “scandalous” trademarks. ” in the context of a dispute relating to its trademark “FUCT”. (Reporting by Andrew Chung in New York; Writing by Will Dunham)
