Supreme Court seems ready to deny trademark for 'Trump Too Small' T-shirts

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The justices of the U.S. Supreme Court appeared skeptical of an attempt by a part-time Democratic activist to trademark the phrase "Trump too small" and put it on T-shirts. / Getty Images

Donald Trump finally got to the Supreme Court on Wednesday. Indirectly. He was not a plaintiff, a defendant or a target. But his name and image were the issue.

The case dates back to a presidential primary debate to 2016 and Sen. Marco Rubio's mocking of candidate Trump as having "small hands."

"He hit my hands," Trump protested. "Look at these hands, are these small hands?" And, "If they're small, something else must be small. I guarantee you there's no problem. I guarantee," he said, with a knowing smirk.

Two years later, part-time Democratic activist Steve Elster applied to trademark the phrase "TRUMP TOO SMALL" for use on T-shirts. The Patent and Trademark Office rejected the proposed mark because federal law bars trademark registration of a living person's name without his consent. The trademark office said that nothing prevents Elster or anyone else from using the phrase, but without a trademark.

The U.S. Court of Appeals for the Federal Circuit disagreed, ruling that the denial of the trademark violated Elster's free speech rights.

That argument, however, had few, if any takers at the Supreme Court Wednesday.

"The question is, is this an infringement on speech? And the answer is no," said Justice Sonia Sotomayor. "He can sell as many shirts with this ["Trump Too Small"] saying as he wants."

Justice Clarence Thomas made a similar point in questioning Elster's lawyer, Jonathan Taylor, who conceded that without a trademark his client can still make and market as many shirts or mugs as he wants with the emblem "Trump Too Small."

So, asked Thomas, "What speech is precisely being burdened?"

Taylor replied that Elster is being denied "important rights and benefits" that are "generally available to all trademark holders who pay the registration fee, and he is being denied that "solely because his mark expresses a message about a public figure."

In other words, the denial of the trademark means that Elster can't charge others a fee for using the phrase "Trump Too Small."

That prompted Justice Elena Kagan to observe that the court has repeatedly said that "as long as its not viewpoint based, government ... can give benefits to some and not ... to others."

Justice Neil Gorsuch chimed in to say that "there have always been content restrictions of some kind" on trademarks. Justice Brett Kavanaugh agreed, noting that "Congress thinks it's appropriate to put a restriction on people profiting off commercially appropriating someone else's name."

And Justice Ketanji Brown Jackson added that a "trademark is not about the First Amendment." It's "about source identifying and preventing consumer confusion."

And finally, there was this from Chief Justice John Roberts: "What do you do about the government's argument that you're the one undermining First Amendment values because the whole point of the trademark, of course, is preventing other people from doing the same thing. If you win a trademark for the slogan, 'Trump Too Small,' other people can't use it, right?"

If that really is a problem, replied lawyer Taylor, then Congress can fix it. But he didn't say how.

Bottom line at the end of Wednesday's argument? Yes, Virginia, there are some things that Supreme Court justices apparently do agree on.

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