Supreme Court will decide whether T-shirt mocking Trump as ‘too small’ can be trademarked

The Supreme Court said Monday that it will decide whether former President Trump can be mocked as “too small” on a trademarked T-shirt. Usually, the trademark law does not allow for using someone’s name over his objection.

But in this instance, a federal appeals court said California lawyer Steve Elster had a free speech right to trademark the phrase “Trump too small” for use on T-shirts and hats.

Elster had argued the trademark would be used as “political commentary” targeted at the former president by invoking a double entendre from the 2016 Republican presidential campaign. Sen. Marco Rubio (R-Fla.) commented that Trump had small hands, “and you know what they say about guys with small hands.”

The Patent and Trademark Office denied Elster’s request for a trademark. The law gives the holder of the trademark the right to prevent others from using it. The law also says no trademark may be registered if it “consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.”

The federal circuit court disagreed and said the 1st Amendment protects the free speech right to comment on or criticize public officials, including by name.

The Biden administration’s Solicitor Gen. Elizabeth Prelogar urged the Supreme Court to hear the government’s appeal and reject the trademark request. She said Elster had a free speech right to mock the former president, but he did not have the right to “assert property rights in another person’s name.”

Trump is not a party to the case, and the administration’s chief attorney said the government was enforcing the trademark law.

“For more than 75 years, Congress has directed the U.S. Patent and Trademark Office to refuse the registration of trademarks that use the name of a particular living individual without his written consent,” she said.

On Monday, the court said it would the hear the case of Vidal vs. Elster in the fall.