The Supreme Court is set to hear arguments on a case that revolves around the issue of free speech and trademarks. The case involves a political slogan criticizing former President Donald Trump and its registration on T-shirts. The question at hand is whether the Patent and Trademark Office (PTO) violated the First Amendment by refusing to register the slogan without Trump’s consent. The case raises important questions about the limits of free speech and the right to privacy when criticism of a government official or public figure is involved.
In 2017, a politically active Democrat attorney named Steve Elster sought to trademark the phrase “Trump Too Small” to be printed on T-shirts for sale. The slogan originated from a crude joke made by Sen. Marco Rubio, R-Fla., about the size of Trump’s hands during a 2016 debate. However, the PTO denied Elster’s trademark request, arguing that it identified Trump without his consent. The Trademark and Trial Appeal Board upheld this decision, but it was later reversed by a federal circuit court. The circuit court recognized that Elster’s trademark was protected by the First Amendment and that the government had no valid interest in restricting speech critical of government officials or public figures in the trademark context.
The case was eventually appealed to the Supreme Court, with the Justice Department arguing on behalf of Katherine Vidal, the under secretary of commerce for intellectual property. The DOJ claimed that the Lanham Act, a federal statute that protects intellectual property in trademark designations, gives the PTO the constitutional authority to block Elster’s trademark request. The outcome of this case will have implications for free speech protections and the ability to trademark political slogans without the consent of the individuals being criticized.
Legal experts have weighed in on the potential implications of the Supreme Court’s decision. Fara Sunderji, a partner at the international law firm Dorsey & Whitney, emphasized that the case is not just about Trump or the size of his policies or body parts. She questioned whether the decision could restrict political criticism at a time when the country is deeply divided and the 2024 election is on the horizon. Sunderji also highlighted the possibility of an influx of trademark applications for political phrases containing candidates’ names if the Federal Circuit’s opinion is upheld.
The Supreme Court will hear arguments in the case, Vidal v. Elster, on Wednesday at 10 a.m. The decision will have significant implications for free speech rights and the ability to trademark political slogans without consent.
