Justices question if ‘Trump too small’ trademark is for free speech or business

The Supreme Court heard oral arguments in a trademark case that has origins in a viral debate moment in which Donald Trump assured the crowd that there is “no problem” with the size of his hands or any other body part. The justice’s decision will have a big impact on trademarks that involve public figures and government officials.

During a 2016 Republican primary debate, Sen. Marco Rubio, R-Fla., made fun of the size of Donald Trump’s hands.

“He referred to my hands, if they’re small, something else must be small,” Trump said. “I guarantee you there’s no problem.”

That inspired Steve Elster to make a T-shirt that reads “Trump too small.” Elster said it’s a double entendre that refers to Trump’s overall approach to governing and the Rubio moment.

On Wednesday, Nov. 1, the Supreme Court heard Elster’s case. The justices will ultimately decide whether refusing to register a trademark violates free speech when the requested trademark contains criticism of a government official or public figure.

Federal law states that a trademark shall be refused registration if it identifies a particular living individual, unless that person gave written consent.

Elster’s lawyers argued that withholding a trademark is a burden on free speech because without one, Elster doesn’t get a trademark’s legal protections.

“The government’s interest in discouraging marks because they hurt the feelings of public figures has nothing to do with the purposes of trademark registration,” Jonathan Ellis Taylor said during his opening remarks.

The deputy solicitor general argued against Elster and said the Patent and Trademark Office simply decides whether the requested trademark refers to a living individual, not whether it’s critical or flattering.

Deputy Solicitor General Malcolm Stewart made this analogy:

“Imagine a car dealer in New York uses as his slogan, ‘the Derek Jeter of car dealers.’ And he explains, ‘I’m not claiming that there’s any affiliation with Derek Jeter. All I’m saying is, I perform my own job with the same excellence and professionalism that New Yorkers have come to associate with Derek Jeter.’ We could accept the explanation, and Derek Jeter could still think, ‘I’m offended by the idea of someone with whom I have no connection, attempting to profit by linking his own products to my name and my good reputation.'”

Elster’s legal team also got tough questions from justices, who wanted to know if this trademark is meant to protect his speech or just his business interests.

“Mr. Taylor, could your client make the shirts or mugs or whatever he wants to make now, unregistered, without registration,” Justice Clarence Thomas asked.

“He can, Justice Thomas,” Taylor said.

Thomas followed up by asking, “So what speech precisely is being burdened?”

“The burden on speech is that my client is being denied important legal rights and benefits,” Taylor said.

Justice Sonia Sotomayor did not approve of Taylor’s explanation.

“I’m sorry, counsel, your whole answer is making me think that you’re just conceding the other side’s point that this is a government benefit,” Sotomayor said. “You’re getting the benefit of stopping others from competing with you.”

The Patent and Trademark Office denied Elster’s application but the U.S. Court of Appeals for the Federal Circuit reversed the decision.