In a significant legal debate, the U.S. Supreme Court exhibited skepticism over allowing the trademark for the phrase “Trump too small,” coined by a California attorney. The slogan, which gained notoriety on T-shirts after a ribald quip by Senator Marco Rubio about Donald Trump’s hand size during a 2016 debate, is at the center of this dispute.

During Wednesday’s session, the justices heard arguments surrounding attorney Steve Elster’s attempt to trademark the contentious phrase. Elster, known for his progressive activism and work as an employment lawyer, has been marketing T-shirts bearing the phrase. The Patent and Trademark Office previously rejected his application, stating that it implied a connection to the former president, requiring Trump’s consent per the Lanham Act of 1946.

The court’s reaction to the arguments suggested a propensity to uphold the Patent and Trademark Office’s decision. Justice Neil Gorsuch referenced the historical precedent of barring trademarks that involve living individuals without suggesting a violation of free speech rights. Justice Sonia Sotomayor and Justice Elena Kagan further elaborated that the inability to secure a trademark does not inhibit Elster’s right to sell the T-shirts, thereby not infringing on free speech.

Although the U.S. Court of Appeals for the Federal Circuit sided with Elster, asserting his First Amendment rights were breached, the Biden administration appealed on behalf of the trademark office.

As reported by a New York Post, The discourse reached a notable moment when Justice Amy Coney Barrett, nominated by Trump, pondered on how the verdict could influence future copyright issues, drawing on Trump’s persona as an illustration.

This case adds to the Supreme Court’s recent engagement with free speech in the realm of trademarks, following the landmark decisions that favored The Slants and the FUCT brand, abolishing bans on disparaging and scandalous trademarks, respectively.



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