Is Trump “too Big” for Trademark? Vidal v. Elster, No. 22-704, petition for review granted 6/5/2023

Professor Laura Little and Andrew Rosen, Temple University School of Law

Yes, it is true. The Supreme Court has agreed to hear yet another funny trademark case. This case dates back to 2018, when a lawyer out of California filed a trademark application for the phrase “Trump Too Small” for use on t-shirts. The Patent and Trademark Office (“PTO”) refused to register the mark as it ran against a prohibition in the U.S. trademark act forbidding registration of marks that feature the name of a specific living person without written consent. The phrase alludes to a boyish quip made by Senator Marco Rubio during the 2017 presidential election campaign: “You know what they say about men with small hands—you can’t trust them,” Rubio remarked to the crowd. (Although the t-shirt was a new idea arising from this taunting remark, jokes about Donald Trump’s hand size have been around for decades. Indeed, in his satirical magazine Spy, Graydon Carter called Trump a “short-fingered vulgarian”— a reference that the former President hasn’t been able to let go.)

When the California lawyer asked for trademark registration with the intention of “convey[ing] that some features of [former] President Trump and his policies are diminutive,” the PTO rejected the mark. The case ultimately made its way to the U.S. Court of Appeals for the Federal Circuit, which reversed on First Amendment grounds, finding the trademark act unconstitutional as applied to this case. On June 5, 2023, the Supreme Court granted the Government’s petition for review. The issues to be decided are whether the government has an interest in preventing criticism of government officials and public figures, and if so, whether the lawyer’s First Amendment right to freely criticize such figures overshadows such interests.

American culture as it stands today is filled with political satire and mocking commentary—just watch any late-night show or Saturday Night Live cold open. The ability to project criticism of the government, be it out of mockery or sincerity, is as the Federal Circuit put it, “at the heart of the First Amendment.” While there’s nothing stopping citizens from tweeting his phrase “Trump Too Small” for all to read, federal trademark law seeks to prohibit printing such words on a t-shirt.

This won’t be the first time the Supreme Court has recently faced a clash between the First Amendment, humor, and the trademark act. In 2017’s Matal v. Tam, the Court found the disparagement clause of the trademark act to be unconstitutional due to its vulnerability to viewpoint discrimination. Matal v. Tam, 137 S Ct. 1744 (2017). Two years later, in Iancu v. Brunetti, the Court nullified another provision in the act that barred “immoral” and “scandalous” material for the same reason. 139 S. Ct. 2294 (2019). And earlier this month, the Court decided the “squeaky dog toy/Jack Daniels” case, which also implicated humor and freedom of expression.

Why, you might ask, is the U.S. Supreme Court so interested in humor and trademark? Several explanations present themselves. First and foremost, these cases concern freedom of expression, enshrined in the U.S. Constitution’s First Amendment. Both conservative and liberal justices currently on the Court appear to care deeply about freedom of expression. Indeed, one might even say that U.S. law has a bit of a fetish about the First Amendment—why else do we countenance the horrible pain inflicted by hate speech? More technically, these cases are brought to the Supreme Court by the Solicitor General of the United States—the third highest ranking officer of the department of justice. When the meaning of the U.S. Constitution hangs in the balance, the Solicitor General often calls for the Court’s attention. And the Court listens. Finally, these cases are fun to read about in the briefs, to hear about at oral argument, to write about in an opinion, and to explain in announcements from the bench. One wonders if the Court will continue its trend of upholding the virtues of freedom of expression over federal trademark regulation, opining on satire and parody, have a little fun in a field of desert-dry cases, and (in the meantime) allow consumers to portray Trump’s smallness for all to see.