November 1, 2023
Remember when Senator Marco Rubio said that about former President Donald Trump’s hands while the two were both running for president in 2016?
Well — today – the Supreme Court heard oral arguments about a trademark dispute over Trump’s hands and their size. I’m not kidding.
The case is called Vidal vs Elster. Steve Elster a California lawyer who is selling this t-shirt. The front says trump too small…and the back lists a package of policies trump goes small on. Well, Elster has been trying to trademark the phrase “Trump too small”. But when he submitted the application to the us patent and trademark office he was rejected. The trademark office said Elster couldn’t trademark the phrase because the law bars any mark that “identif[ies] a particular living individual” without that person’s written consent.” Obviously, Trump has not consented to his name being used in this way. But Trump was also – for four years – the chief executive of the u-s government.
So, Elster sued and ultimately an appeals court sided with him saying the government denying him the trademark unconstitutionally restricted his free speech and went on to say the federal government cannot restrict speech critical of government officials or public figures in the trademark context.
Now – what’s interesting thread in this case is — the Biden Justice Department is the one defending Trump in this case. The DOJ is representing the trademark office and it’s position that the trademark should not be granted to Steve Elster. In fact the Biden DOJ is the one that appealed this case to the Supreme Court.
Now – even if the Supreme Court rules against Elster and says the trademark office can deny him the trademark – there’s nothing stopping him from continuing to sell the t-shirts. He just wouldn’t have a trademark on the phrase.
During oral arguments today the justices seemed to lean in favor of denying Elster the trademark – but as I always say – just because that’s how the justices seem during oral arguments doesn’t mean that’s how they’re going to ultimately rule.
The final ruling will likely be made at the end of the term in June.
Read the case here.
See the t-shirt here.
