It’s not even a presidential election year, and Donald Trump merchandise has been all over the news cycle. First there were the products that popped up following the release of his mugshot. Then there were the people who used the image to make their own merchandise, like the rock band Green Day. Finally, there was the news that the Fulton County sheriff’s office might legally be entitled to any revenue from the merchandise.
Now, we’re moving onto the Supreme Court, where a battle over free speech is focused around a T-shirt design mocking Trump.
During the 2016 Republican primary, Sen. Marco Rubio commented on the size of Trump’s hands. Two years later, activist Steve Elster tried to trademark the phrase “TRUMP TOO SMALL” to use on merchandise like apparel.
He was denied this trademark application due to the fact that federal law prohibits trademark registration of a living person’s name without their consent. Essentially, Elster could make and sell T-shirts with the phrase all he wanted, but he couldn’t own the trademark.
The U.S. Court of Appeals for the Federal Circuit found that this decision infringes on Elster’s free speech rights, and now the issue is being brought to the Supreme Court, where Elster seems primed for disappointment.
“The question is, is this infringement on free speech? And the answer is no,” said Justice Sonia Sotomayor, according to NPR. “He can sell as many shirts with this saying as he wants.”
Justice Clarence Thomas similarly questioned Elster’s lawyer, Jonathan Taylor, “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,'” per NPR.
And, yes, that does seem to be the long and short of it. Barring the Supreme Court reversing what seems like a cut-and-dry legal precedent here, Elster will likely not get a trademark for “TRUMP TOO SMALL,” where he could solely profit from the phrase and charge others for using it.
“Congress thinks it’s appropriate to put a restriction on people profiting off commercially appropriating someone else’s name,” Justice Brett Kavanaugh said.
Justice Ketanji Brown Jackson succinctly added that, “Trademark is not about the first Amendment. [It’s] about source identifying and preventing consumer confusion.”
There’s no brand being used in this merchandise, or no phrase that could potentially confuse buyers into thinking they’re getting a product from or representing another brand.
It’s a rare instance that today’s Supreme Court seems almost boringly unified in their decision. So, if I were Steve Elster, I would not get my hopes up over landing that trademark.
