WASHINGTON, Nov 1 (Reuters) – U.S. Supreme Court justices on Wednesday appeared skeptical that a California lawyer could own a federal trademark covering the phrase “Trump is too small,” despite objections from the U.S. Patent and Trademark Office in legal battle over the interplay between trademarks and constitutional free speech rights.
The justices heard arguments in the agency’s appeal of a lower court ruling that overturned the denial of attorney Steve Elster’s trademark application for “Trump Too Small” — a disrespectful criticism of former President Donald Trump — for use on T-shirts.
Some of the justices expressed doubt that Elster’s refusal violated his right to free speech protected by the First Amendment of the US Constitution, as he argued.
Conservative Chief Justice John Roberts told Elster’s lawyer Jonathan Taylor that a victory for his client could create problems for the freedom of expression of others.
“There’s supposed to be a race to trademark ‘Trump also this, Trump also that,’ whatever. And then, especially in the realm of political expression, it really cuts off a lot of expression that other people might consider a significant violation of their First Amendment rights,” Roberts said.
Liberal Justice Sonia Sotomayor added: “The question is, is this an assault on speech? And the answer is no.”
Elster applied for the trademark in 2018, citing an exchange between Trump and U.S. Sen. Marco Rubio during a debate between the candidates for the Republican presidential nomination in 2016. Trump had previously insulted Rubio as “little Marco.” Rubio shot back that Trump has disproportionately small hands.
“Look at those hands. Are they small hands?” Trump asked during the debate. “If they’re small, something else must be small. I guarantee you, there’s no problem. I guarantee it.”
Elster said that “Trump is too small” was expressing his opinion about “the pettiness of Donald Trump’s overall approach to governing.” Trump was president when the filing was made.
Trump, now the favorite for the Republican nomination to challenge Democratic President Joe Biden in the 2024 US election, is not personally involved in the case and has not commented on it.
The Trademark Office rejected Elster’s application based on a 1946 federal law that prohibits the use of a person’s name in a trademark without that person’s permission. But a federal appeals court sided with Elster, finding that the government’s interest in protecting the privacy and publicity rights of public figures did not supersede Elster’s First Amendment right to criticize them.
Elster’s application remains on hold at the agency pending the Supreme Court’s decision, which is expected by the end of June.
In recent years, the Supreme Court has struck down two trademark laws, citing free speech concerns. He ruled in favor of Asian-American rock band The Slants in 2017 against an injunction against “disparaging” trademarks and in favor of artist Eric Brunetti against an injunction against “immoral” or “scandalous” trademarks in a dispute over his “FUCT” brand in 2019.
The Biden administration has told the Supreme Court that the law now under consideration is different because it does not restrict speech based on a candidate’s viewpoint and is only intended to prevent “the use of one person’s name for the commercial benefit of another.”
Some judges challenged Taylor to explain how Elster’s speech was burdened by the trademark disclaimer.
“What are the viewpoint concerns, and are they real?” asked liberal Justice Ketanji Brown Jackson.
Conservative Justice Neil Gorsuch emphasized that there is a long tradition since the founding of the nation of limiting trademarks to the names of living people.
“After all, it’s pretty hard to argue that a tradition that’s been around for a long, long time … is inconsistent with the First Amendment,” Gorsuch said.
Reporting by Blake Brittain in Washington; Additional reporting by Andrew Chung in New York and John Kruzel in Washington; Editing by Will Dunham
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