The Supreme Court confronts the question of trademark rights in the 'Trump too small' case
In arguments Wednesday, Supreme Court justices will weigh a California man's attempt to trademark a phrase mocking former president Donald Trump as "too small."
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Following a day of arguments in social media cases with echoes of Trump, the Justice Department is supporting President Joe Biden's once and possibly future rival in urging the court to deny a trademark for the suggestive phrase "Trump too small" that Steve Elster wants to put on T-shirts.
Government officials said the phrase "Trump too small" could still be used, just not trademarked because Trump had not consented to its use. But a federal appeals court said refusing trademark registration violated free speech rights.
The high court has considered a raft of Trump-related cases in recent years. The justices have dealt with cases about Trump's claims of fraud in the 2000 election and with his efforts to shield his tax records from Congress and to keep other tax records from prosecutors in New York, among other things.
The justices also could be asked to decide whether Trump can be disqualified from running for the White House again because of his role in the Jan. 6, 2021 assault on the U.S. Capitol.
In the latest case, the Justice Department is defending government officials' decision to reject Elster's trademark request.
The phrase is a reference to a memorable exchange Trump had during the 2016 presidential campaign with Florida senator and GOP presidential rival Marco Rubio.
Rubio began the verbal jousting when he told supporters at a rally that Trump was always calling him "little Marco" but that Trump — who says he is 6 feet and 3 inches tall — has disproportionately small hands.
"Have you seen his hands? ... And you know what they say about men with small hands," Rubio said. "You can't trust them."
Trump then brought up the comment at a televised debate on March 3, 2016.
"Look at those hands. Are they small hands? And he referred to my hands — if they're small, something else must be small. I guarantee you there's no problem. I guarantee you," he said.
Twice in the past six years, the justices have struck down provisions of federal law denying trademarks seen as scandalous or immoral in one case and disparaging in another.
The new case deals with another measure calling for a trademark request to be refused if it involves a name, portrait or signature "identifying a particular living individual" unless the person has given "written consent."
Elster's lawyers argue that the law should meet the same fate as the ones in the earlier cases because refusing to register a political slogan criticizing Trump without Trump's consent violates the First Amendment's Free Speech clause.
The provision "effectively precludes the registration of any mark that criticizes public figures—even as it allows them to register their positive messages about themselves," the lawyers wrote.
The administration counters that the government shouldn't be forced to reward someone who wants to "commercially appropriate someone else's identity."
A decision in Vidal v. Elster, 22-704, is expected by early summer.
