In news that may disappoint fans of both intellectual property disputes and slogan-based political snark, the Supreme Court has ruled against a California man who spent years trying to trademark the phrase “Trump Too Small.” It appears there are limits to protected speech, and those limits begin right around the waistline of delicate sensibilities.
The case involved Steve Elster, a clever if perhaps slightly obsessive gentleman who wanted exclusive rights to slap “Trump Too Small” across shirts, hats, and presumably mugs destined to be both conversation pieces and stocking stuffers. The U.S. Patent and Trademark Office, with the humorless efficiency of a DMV line, had denied the application, citing a federal rule that you cannot trademark a name without the person’s consent. Especially if that name belongs to a former president with a strong penchant for litigation and an aversion to being the butt of the joke.
The high court agreed, ruling unanimously that the government can indeed reject the trademark without infringing on Elster’s cherished First Amendment rights. Even Justice Clarence Thomas, whose opinions rarely travel light, managed to distill the core issue to this: trademark law has always had a few fences that keep personal names from becoming commercial slogans without permission. In case the underlying message was not clear, the Court seems to be saying, “You’re welcome to insult politicians, just not with a registered logo.”
Elster’s argument had been that political criticism is at the heart of free speech, and that his slogan, referencing a flamboyantly awkward 2016 debate moment involving Trump and Marco Rubio, was more critique than commerce. But the justices tapped the brakes, suggesting that if we let everyone trademark zingers based on political misfires, the entire system might collapse under the weight of snarky t-shirts and performative outrage.
The decision leaves us with this sobering truth: in America, you’re still entirely free to poke political figures with verbal sticks, just don’t expect to make it a fashion line.
Apparently, size really does matter in trademark law.