Oral Arguments at the U.S. Supreme Court in Vidal v. Elster, aka the TRUMP TOO SMALL Case

On November 1, 2023, SCOTUS heard oral arguments in Vidal v. Elster on appeal from the Federal Circuit Court of Appeals, which had reversed the refusal by the Trademark Trial and Appeal Board (“TTAB”) to register TRUMP TOO SMALL for T-shirts and other apparel. In reversing the TTAB, the court held that 15 U.S.C. §1052(c) of the Lanham Act, which prohibits registration of any mark that “consists of or comprises a name, portrait or signature identifying a particular living individual except by his written consent,” under certain circumstances chills the Free Speech Clause of the First Amendment and may be impermissibly broad. The Justice Department’s argument to the contrary was that denying the trademark registration does not prohibit free speech, because, even without federal trademark protection, Elster could still use the phrase to suggest that Mr. Trump’s policies and features are diminutive. Given the comments from the bench, Justices Alito, Sotomayor, Gorsuch and Roberts appeared skeptical as to the government’s arguments. While a decision is probably several months away, it seems unlikely that the SCOTUS will find 15 U.S.C §1052(c) unconstitutional under the facts presented in Vidal. Stay tuned!