The U.S. Supreme Court, in Vidal v. Elster, No. 22-704 (June 13, 2024), unanimously ruled that the U.S. Patent and Trademark Office did not violate applicant Steve Elster’s First Amendment rights when it denied federal trademark registration for the mark “TRUMP TOO SMALL.” The justices based their decision on a long-standing Lanham Act provision prohibiting trademark registrations including a living person’s name, without their consent. In this case, ex-President Trump’s name was used in the trademark, a coy reference to Sen. Marco Rubio (R-Fla) mocking the size of Trump’s hands during the 2016 Republican Presidential debate. Applicant Elster posited that the trademark was “political commentary about the smallness of Donald Trump’s overall approach to governing as president of the United States and the smallness of his approach to specific issues as president” and argued that the inability to register the proposed mark violated his first amendment rights and unfairly denied him the benefits that come with federal trademark registration. The Court found the arguments unpersuasive, finding no valid distinction between the prohibition of using a political figure’s name and any other name. The Court concluded “that a tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fits within that tradition” and that refusal to register a trademark containing Trump’s name without the ex-president’s consent did not violate any First Amendment right.
This decision marks a slight deviation from recent SCOTUS decisions at the crossroads of the Lanham Act and the First Amendment. In two recent cases, the Court invalidated Lanham Act provisions prohibiting federal registration of disparaging marks (Matal v. Tam, 582 U.S. 218 (2017)) and “immoral or scandalous” marks (Iancu v. Brunetti, 139 S. Ct. 2294 (2019)). In Tam and Brunetti, the Lanham Act provisions at issue were found by the Court to discriminate against particular viewpoints. In contrast, the Court in Elster found the provision prohibiting trademark registrations, including a living person’s name without consent, viewpoint neutral. While the prohibition on federal registration of names without consent is not new, this decision clarifies that it holds even for well-known political figures.