Author: John Hanno

Fox News

Size of Trump’s hands at center of Supreme Court trademark case: ‘Trump Too Small’

Brianna Herlihy – November 1, 2023

The Supreme Court on Wednesday will hear arguments over whether the Patent and Trademark Office (PTO) violated the First Amendment when it refused the registration of a political slogan on T-shirts that criticizes former President Donald Trump without his consent.

At the heart of the case is the question of when First Amendment protections end and the right to privacy begins when a trademark contains criticism of a government official or public figure.

In 2017, Steve Elster, a politically active Democrat attorney in California, wanted to get the phrase “Trump Too Small” printed on T-shirts to sell. The phrase originated from an exchange on the 2016 debate stage between Trump and Sen. Marco Rubio, R-Fla. The Florida senator made a crude joke in reference to the size of the former president’s hands.

But when Elster sought to trademark the slogan, he was denied by the PTO, and the Trademark and Trial Appeal Board upheld the decision, because the mark identified Trump without his consent.

The decision was reversed by a federal circuit court, noting that Elster’s trademark goes to “the heart of the First Amendment,” and held that the government has no plausible “interest in restricting speech critical of government officials or public figures in the trademark context.”

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The Justice Department arguing on behalf of Katherine Vidal, under secretary of commerce for intellectual property, eventually appealed the case up to the Supreme Court, arguing that the Lanham Act, which is a federal statute aimed at protecting intellectual property in trademark designations, gives the PTO constitutional authority to block Elster’s trademark request.

“When registration is refused because a mark ‘[c]onsists of or comprises a name…identifying a particular living individual’ without ‘his written consent,’ ‘[n]o speech is being restricted; no one is being punished,’” the DOJ’s petition to the high court says.

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Fara Sunderji, partner at international law firm Dorsey & Whitney, says, “Despite outward appearances, this case is really not about Trump or the size of his policies or (body parts).”

“Will this decision restrict speech — namely political criticism in a time where the country is so divided as the 2024 candidates are starting up their engines? The trademark applicant, Mr. Elster, would have us believe that, yes, that is what is at stake,” says Sunderji.

“So, what is the potential outcome? If the Court upholds the Federal Circuit’s opinion, will the USPTO be inundated with trademark applications for every political phrase containing a candidate’s name in the 2024 election? Probably not. Will daily life be flooded with t-shirts containing slogans with all the 2024 candidates’ names by unrelated third parties? I hope not,” concludes Sunderji.

Arguments are scheduled to begin at 10 a.m. on Wednesday.

Los Angeles Times

Supreme Court sounds ready to rule a Californian can’t trademark T-shirts with Trump’s name

David G. Savage – November 1, 2023

Supreme Court justices on Wednesday sounded ready to rule that a T-shirt with the phrase “Trump Too Small” cannot be trademarked by a California attorney seeking the exclusive right to sell clothing with the slogan.

Trump is not a party to the case of Vidal vs. Elster, but in the past he objected when businesses and others tried to make use of his name.

In arguments Wednesday, Biden administration attorneys urged the court to deny the trademark for the disputed shirts, but their position was not related to the message, which is critical of the former president.

Since 1946, Congress has barred the registering of a trademark that includes a name or image that identifies “a particular living individual,” administration attorneys said.

When they adopted this provision, lawmakers were particularly interested in preventing the use of a president’s or former president’s name as a means to advertise products. They cited examples such as “George Washington” coffee or “Abe Lincoln” gin.

Deputy Solicitor Gen. Malcolm Stewart described a trademark as “a condition on a federal benefit, not a restriction on the freedom of speech.”

He said California attorney and T-shirt entrepreneur Steve Elster has a right to sell his “Trump Too Small” T-shirts, but not “an exclusive right” to the phrase.

Elster said he was amused in 2016 when Republican presidential candidates exchanged comments about the size of Trump’s hands during a debate. Florida Sen. Marco Rubio, whom Trump had mocked as “Little Marco,” asked Trump to hold up his hands, which he did.

After Trump won the election, Elster decided to sell T-shirts with phrase “Trump Too Small,” criticizing Trump’s accomplishments on civil rights, the environment and other issues.

He was free to do so, but the Patent and Copyright Office denied his request to trademark the phrase for his exclusive use.

When he appealed the denial, a federal appeals court ruled his trademark phrase was political commentary protected by the 1st Amendment.

Solicitor Gen. Elizabeth Prelogar appealed on behalf of the government and urged the Supreme Court to reverse that decision.

In arguments Wednesday, Justice Clarence Thomas said he did not see how the denial of a trademark restricted free speech, since Elster was free to sell his T-shirts and to use the phrase.

Chief Justice John G. Roberts Jr. said that upholding Elster’s trademark could restrict free speech because it would prevent others from using the disputed phrase.

Justice Brett M. Kavanaugh said it was reasonable for Congress to decide not to help others to profit from the use of a person’s name.

The New Republic

What Trump’s Reduced Us to: Supreme Court Hears Case Relating to Trump’s Anatomy

Tori Otten – November 1, 2023

The Supreme Court will hear arguments Wednesday about whether a California man can trademark a phrase mocking Donald Trump as “too small.”

Labor lawyer Stephen Elster created a line of T-shirts that describe Trump as “too small” on a variety of social and political issues, with a healthy dose of innuendo thrown in. It refers to an exchange during a 2016 presidential debate, when Marco Rubio accused Trump of having small hands. Trump, who is notoriously thin-skinned, has been unable to escape the barb since.

Elster tried to trademark the phrase “Trump too small” in 2018, but the Patent and Trademark Office denied his request. Wednesday’s lawsuit hinges on the question of whether a trademark can refer to a person. Federal law prohibits trademarks that refer to a person without that person’s consent. But last year, The U.S. Court of Appeals for the Federal Circuit ruled that that law was in violation of the First Amendment, because it limits “speech critical of government officials or public figures.”

The Supreme Court has previously avoided taking up cases related to Trump, denying his request to intervene when Congress sought his tax records or when he lost the 2020 election, among other instances. But clearly, the justices can’t ignore Trump much longer.

Trump isn’t even a party in the Elster case—it just includes his name. But Trump himself is facing down a barrage of legal issues that will likely reach the level of the nation’s highest court.

Trump’s legal team may appeal the gag order recently imposed by Judge Tanya Chutkan in his trial for trying to overturn the 2020 election. Trump has also repeatedly argued that he has presidential immunity from prosecution, and the Supreme Court may need to weigh in on that matter. Two lawsuits seek to bar Trump from the 2024 presidential ballot, and both are expected to reach the Supreme Court, as well.