Supreme Court to decide if a California man should be able to trademark the phrase “Trump too small”

Published: Oct. 31, 2023 at 4:43 PM EDT

WASHINGTON (Gray DC) - A California man has been fighting to trademark a phrase that mocks the size of former President Donald Trump’s hands. But the U.S. Patent and Trademark Office rejected the request and said Trump’s written consent would be required. The dispute has now gotten all the way to the Supreme Court, with arguments for the case set to begin Wednesday.

The phrase at the center of the debate is “Trump too small,” a reference to a crude joke that was made on a Republican presidential debate stage by Sen. Marco Rubio (R-FL) back in 2016 when he made fun of Trump for allegedly having small hands.

Steve Elster has been putting the phrase on t-shirts but he was not allowed to trademark it because the U.S. Patent and Trademark Office said it would require the written approval of Trump himself.

“The constitutional question that has actually presented to the court is whether this restriction on the ability to obtain a trademark in a person using a person’s name without their consent is a violation of their ability to engage in free speech,” said Adam Mossoff, Professor of Law at Antonin Scalia Law School at George Mason University.

The trademark office argues that it refused registration under a section of a law known as the Lanham Act which they say bars trademarks “identifying a living individual” without their consent.

“this is a provision of the Lanham Act that is has that has been a source of of much dispute and has been a source of continued Supreme Court review of the trademark of the trademark system,” said Mossoff.

According to a brief written for Elster, he was trying to register the phrase to convey a political message about the then-President of the United States and his policies.

Some like Paul Levy of consumer rights advocacy group Public Citizen argue, there are concerns with allowing people to trademark phrases like this.

“The danger in allowing the creation of an exclusive privilege to make a particular joke on a t shirt is that it could enable people who want to suppress critical speech to register trademarks for the purpose of blocking other people’s use of them,” said Levy.