SCOTUS Decision in “Trump Too Small” Trademark Case

On June 13, 2024, the Supreme Court unanimously ruled that the phrase “Trump Too Small” is not eligible for trademark protection under the Lanham Act. The case, Vidal v. Elster, arose out of the denial by the Patent and Trademark Office (“PTO”) of Steve Elster’s trademark application for “Trump Too Small.” The Trademark Trial and Appeal Board (“TTAB”) affirmed the PTO’s denial, holding that 15 U.S.C. § 1052(c) of the Lanham Act, which prohibits the registration of a mark that uses the name of a living person without that individual’s permission, prohibited the registration of “Trump Too Small.” On appeal, however, the Federal Circuit Court of Appeals reversed the PTO’s denial of Elster’s registration, holding that it violated the First Amendment by restricting political speech. The Justice Department argued that the PTO’s decision to deny registration was not violative of the First Amendment because Elster was still free to use the phrase “Trump Too Small” to critique Donald Trump and his policies without a registered trademark. The Supreme Court reversed the Federal Circuit’s decision, holding that denying registration of “Trump Too Small” under 15 U.S.C. § 1052(c) did not violate the First Amendment because the clause does not discriminate against any viewpoint.