FILE – Republican presidential candidate, businessman Donald Trump, right, answers a question, as Republican presidential candidate, Sen. Marco Rubio, R-Fla., listens, during the Republican presidential debate at the University of Miami, March 10, 2016, in Coral Gables, Fla. (AP Photo/Wilfredo Lee, File)
The Supreme Court will review whether an activist can receive trademark protection for T-shirts labeled “Trump Too Small,” based on Rep. Marco Rubio’s jeer about the former president’s hands.
Before the 2016 presidential election, then-candidate Donald Trump labeled his Florida rival “little Marco,” and Rubio clapped back on the campaign trail with a suggestive joke about Trump’s “small hands.”
“And you know what they say about guys with small hands,” Rubio prompted a roaring crowd, before capping off with a G-rated punchline.
“You can’t trust ’em!” Rubio cracked.
During a subsequent presidential debate, Trump defended the size of his anatomy: “I guarantee you, there’s no problem.” For Trump’s campaign, Rubio’s insinuation about the size of the former president’s penis wasn’t a problem. Trump defeated him handily in the primary, and he ultimately won the general election.
The inspiration that political activist Steve Elster drew from the exchange, however, created a thornier problem to be resolved by the highest court in the United States.
On Monday, the Supreme Court agreed — without comment — to hear whether the law demands that Elster needed Trump’s permission to register the trademark.
In 2018, Elster first sought trademark protection in a request stating that he sought to convey that “some features of President Trump and his policies are diminutive.” The Patent and Trademark Office rejected the request, finding that the Lanham Act required Trump’s “written consent” to use his name.
“Trump Too Small” merchandise pictured on Steve Elster’s website.
An administrative appellate board affirmed that result, but an appellate court reversed, finding Elster’s First Amendment rights trumped the former president’s rights to privacy and publicity.
The Department of Justice petitioned the Supreme Court for review, arguing Trump’s position.
“No one doubts that political speech is ‘at the heart’ of what the First Amendment protects,” wrote Solicitor General Elizabeth Preloger.
But Preloger argued that the Lanham Act guidelines didn’t represent a “restriction on speech,” characterizing them instead as “a viewpoint-neutral condition on a government benefit.”
Former federal prosecutor Mitchell Epner, who is now a media lawyer and partner with Rottenberg Lipman Rich PC, believed the high court’s granting of the petition to be significant.
“The Supreme Court’s decision to take up the Federal Circuit’s opinion that it was unconstitutional for the Trademark Board to refuse to register the ‘Trump Too Small’ trademark is a big step in rewriting the application of the First Amendment to trademark registration,” Epner said. “This will be the third case in the last six years to address this question.”
In 2017, the Supreme Court loosened trademark restrictions in the case of a band called the “Slants,” based on a slur for Asian Americans. The band, whose members are Asian American, initially were denied protection for their name, under a rule preventing trademarks disparaging to any person, living or dead. The Supreme Court found that rule to be unconstitutional.
Some two years later in 2019, the Supreme Court struck down a law preventing the trademark of “immoral or scandalous matter,” ruling in favor of the “FUCT” clothing brand.
Have a tip we should know? [email protected]
