The Supreme Court ruled on Thursday against a man who sought to trademark the suggestive phrase “Trump too small.”
The justices upheld the government’s decision to deny a trademark to Steve Elster, a California man seeking exclusive use of the phrase on T-shirts and potentially other merchandise. It is one of several cases at the court relating to former President Donald Trump, including major cases related to the violent attack on the Capitol in 2021. Earlier this term, the court laid out standards for when public officials can be sued for blocking critics from their social media accounts. These cases were also related to Trump.
The Justice Department backed President Joe Biden’s predecessor and potential 2024 rival. Government officials said the phrase “Trump too small” could still be used, just not trademarked because Trump had not consented to its use. Indeed, “Trump too small” T-shirts can already be purchased online.
Elster’s attorneys contended that the decision infringed on his free speech rights, and a federal appeals court agreed.
During arguments, Chief Justice John Roberts noted that a victory for Elster could lead to a rush to trademark phrases like “Trump too this, Trump too that.”
Supreme Court’s recent challenges to trademark regulations
Twice in the past six years, the justices have struck down provisions of federal law denying trademarks seen as scandalous or immoral in one case and disparaging in another.
Elster’s case involved another regulation requiring a trademark request to be denied if it features a name, portrait, or signature “identifying a particular living individual” unless that person has given “written consent.”
The phrase central to the case references an exchange Trump had with Florida Sen. Marco Rubio during the 2016 presidential campaign, when both were vying for the Republican nomination.
Rubio initiated the verbal sparring by telling rally attendees that Trump often called him “little Marco” but that Trump — who claims to be 6 feet 3 inches tall — has unusually small hands. “Have you seen his hands? … And you know what they say about men with small hands,” Rubio remarked. “You can’t trust them.”
Trump addressed the comment during a televised debate on March 3, 2016.“Look at those hands. Are they small hands? And he referred to my hands — if they’re small, something else must be small. I guarantee you there’s no problem. I guarantee you,” he said.