Supreme Court rejects effort to trademark "Trump too small" phrase
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The Supreme Court on Thursday unanimously rejected an attempt to trademark a phrase about former President Trump's hands to sell on T-shirts.
The big picture: It ruled that the U.S. Patent and Trademark Office correctly rejected a California lawyer's attempt to patent the phrase "Trump too small" because it violated the office's policy against trademarking a living person's name without that person's consent.
Context: The lawyer, Steve Elster, claimed the rejection limited his First Amendment rights.
- The phrase stemmed from taunts between Trump and Sen. Marco Rubio (R-Fla.) during the 2016 Republican presidential primary.
Between the lines: During oral arguments, Justice Sonia Sotomayor noted that Elster was still free to sell the T-shirts even if he couldn't trademark the phrase.
What's inside: Justice Clarence Thomas wrote that the "history and tradition" of restricting trademarks containing names alone were sufficient to conclude that the Patent Office's names clause did not violate the First Amendment.
- "Such restrictions have historically been grounded in the notion that a person has ownership over his own name, and that he may not be excluded from using that name by another's trademark," Thomas wrote.
Zoom in: Justice Amy Coney Barrett, in a concurring opinion that was joined in part by Sotomayor and Ketanji Brown Jackson, took issue with some of the high court's reasoning.
- She disagreed that "history and tradition" were enough to uphold the names clause.
- "That is wrong twice over," Barrett wrote, saying the court didn't present a "historical analogue" and "never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question."
- Instead, she recommended that the court instead adopt a standard "grounded in both trademark law and First Amendment precedent, that reflects the relationship between content based trademark registration restrictions and free speech."
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