Here’s What Happened:

Political discourse can include the use of a politician’s name in a less than flattering light. But can someone elevate it to a trademark registration? The US Supreme Court says “no” unless you have the politician’s permission.

Steve Elster sought to register the trademark “Trump too Small,” accompanied by an illustration of a hand gesture, to use on shirts and hats. The mark draws on an exchange between then-candidate Donald Trump and Senator Marco Rubio during a 2016 Presidential primary debate. The USPTO’s examining attorney refused registration because Trump hadn’t given permission to use his name.

Steve appealed to the Federal Circuit Court of Appeals and won a reversal which led to an appeal to the US Supreme Court.

Justice Clarence Thomas writing for the majority agreed with the USPTO’s refusal to register.

Steve argued that he had a First Amendment Free Speech right to use Trump’s name in connection with “Trump Too Small” branding. The Supreme Court rejected this argument. Trademark law has long recognized that a person has ownership over his own name and can exclude others from using it without his permission (sometimes referred to as the names clause). First Amendment Free Speech has always co-existed with the names clause. But, in this case, the names clause wins.

WHY YOU SHOULD KNOW THIS: This decision makes sense if you think of it from the perspective of the difference between marketing and political discourse. Everyone should be able to control the use of their name when marketing someone else’s products. The decision carefully skirts around the issue of whether Steve can still sell “Trump so Small” as decoration on a tee shirt rather than as a brand.

Case Information: Vidal v. Elster, --- S.Ct. ---, 2024 WL 2964139, at *4 (U.S. June 13, 2024)

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