'Trump too small' trademark clash to be decided by Supreme Court

[BumRushDaShow]

Source: NBC News

WASHINGTON — A crude joke that Sen. Marco Rubio, R-Fla., used to mock what he said was then-2016 presidential candidate Donald Trump's "small hands" will be the centerpiece of a Supreme Court ruling on whether a California lawyer can trademark the phrase "Trump too small."

The court on Monday agreed to consider whether Steve Elster could register the trademark for the phrase — a double-entendre meant to insinuate a correspondingly small penis — amid government claims that it would require the written approval of Trump himself. The case will be argued and decided in the court's next term, which begins in October and ends in June 2024.

In addition to working as an employment lawyer, Elster is a progressive political activist and works as a teacher for child actors working in film and television. When Elster sought to register the trademark with the U.S. Patent and Trademark Office in 2018, he was rejected on the grounds that members of the public would immediate associate the word "Trump" with the then-president. Under established law, the written consent of Trump would be required, the office concluded.

The "Trump too small" phrase is a reference to a 2016 Republican presidential primary debate featuring both Trump and Rubio. Rubio joked about Trump having small hands, adding: "And you know what they say about guys with small hands." Elster said in his application that he wanted to spread a message that "some features of President Trump and his policies are diminutive." He wants to include the phrase on the front of T-shirts, with the phrase "Trump's package is too small," on the back, followed by a list of policy areas that he says fit that characterization.

Read more: https://www.nbcnews.com/politics/supreme-court/trump-small-trademark-clash-decided-supreme-court-rcna86822

[jaxexpat]

1. The disturbing thing about this is the fact that.....

this isn't a "The Onion" article.

[msfiddlestix]

3. I'm gob-smacked. What on earth is the rationale for SCOTUS to agree to hear this case?

Just when I feel this court has absolutely no bar they won't lower themselves to, they manage to sink even more on their very own volition.

[CrispyQ]

4. The key part of the article:

The Supreme Court in recent years has endorsed free speech rights in the trademark context, suggesting Elster could have a chance of prevailing in the case.

In 2017, the court struck down a prohibition on trademarks that feature disparaging language, handing a win to an Asian-American rock band called The Slants. Two years later the court similarly threw out a ban on trademarks based on immoral or scandalous words, ruling in favor of clothing brand FUCT.

Not sure I agree that they'll rule in Elster's favor. They could say this type of use is personal, directed at a person, not a group or a word.

[msfiddlestix]

5. But his name isn't even included in the brand. if it were, I could see the rationale

despite the fact the reference might be argued that it's implied, and one could infer, still, it isn't literally included.

I mean seriously, can you imagine if brands embodying certain references and implications of famous people or places were to be considered illegal? LOL!

[CrispyQ]

7. Yeah, if it were anyone but Trump.

What a compromised court this is. It will be interesting to see how they rule.

[msfiddlestix]

8. indeed. if I were a betting gal, I'd wager *this* court will rule against the brand.

[sinkingfeeling]

2. Why is this a matter for the SCOTUS?

[unblock]

9. Generally, you can't trademark someone else's name

without their consent.

Free speech / fair use for him to simply use the phrase without a trademark on t-shirts and such, but should he have the right to trademark it and prevent other people from using the phrase?

I actually think letting him trademark it would be counterproductive. A friend of a politician could trademark all kinds of negative phrases involving the politician and go around suing people who use those phrases commercially.

[sinkingfeeling]

10. But why is this at the level of the SCOTUS and not some other federal court?

[unblock]

11. It already went to the court of appeals and the government is appealing

[sinkingfeeling]

16. Thanks. Didn't read that.

[LisaM]

13. You can't register the trademark without consent.

He can still use it, unless Trump gets it enjoined.

I am surprised this went to the Supreme Court, though the applicant already exhausted his recourse through the Trademark Trial and Appeal Board.

It's pretty established that you can't register the name of a living individual as a trademark without their consent, even if it's a nickname of a famous person.

[unblock]

14. Court of appeals sided with him. It's the government that appealed to the Supreme Court

I think the argument that trump is a public figure only confuses the matter. If anything, that's an argument in the government's favor.

People already have a free speech right to use such phrases, including on t-shirts. But to trademark? I think it's all the more important that such phrases *not* be trademarked so that we can all use them.

[LetMyPeopleVote]

6. This will be fun to watch

This lawsuit will be fun to watch

[Kid Berwyn]

12. If they can't use it, maybe "Mushroom Man" is nice?

[unblock]

15. They can use the phrase. The question is just can they trademark it

And thereby prevent others from using the phrase.

[Kid Berwyn]

18. Thanks for the heads-up!

I just wanted to make certain that no opportunity to disparage the traitor goes unmentioned.

[melm00se]

17. The substantive question before the Court

is

Whether the refusal to register a mark under Section 1052(c) violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.

To my mind, the key part of the question is does the 1st Amendment override the need for target's written permission when the targeted person is/was a government official or public figure?

In previous cases courts have held that in the cases of private (non-public) figures, their individual rights are superior other rights but the reverse is true when there is a transition from private to public figure. One of the most obvious cases was NYT vs. Sullivan when it was determined that the definition of libel is different for public figures than private figures.

[bigtime]

19. If awarded, would this trademark have any significant value?

It’s hard for me to see this as being worth a prolonged court battle, if cashing in on the trademark is the only point.

[RainCaster]

20. Who cares about the trademark if you don't have the domain name?

You know, something like http://www.smalltrump.com?

It took me very little time to get that.