(Bloomberg) -- The US Supreme Court agreed to take up a free speech showdown over a man trying to get federal trademark protection for the phrase “Trump too small.”
The justices said Monday they will hear the Biden administration’s appeal of a ruling that said Steve Elster has a First Amendment right to seek to register the mark with the US Patent and Trademark Office. Elster says he wants to use the phrase on T-shirts.
At issue is a decades-old provision in federal trademark law barring registration of marks that identify a living person without that individual’s consent. A federal appeals court in Washington said the provision violates the First Amendment when the trademark includes criticism of a government official or public figure.
US Solicitor General Elizabeth Prelogar argued in the appeal that the provision passes constitutional muster because it is a “a condition on a government benefit, not a restriction on speech.”
Federal registration gives trademark owners protections on top of those they already have under state law. Registration can confer exclusive rights in locations where no one was already using the name or image, help owners win lawsuits and put would-be competitors on notice that a trademark is legally protected.
The case puts President Joe Biden’s administration in the unusual position of arguing against an effort to mock his potential reelection opponent, former President Donald Trump. Prelogar’s filing adheres to the traditional solicitor general practice of defending the constitutionality of federal statutes.
Elster’s lawyers said the “Trump too small” phrase alludes to discussion over the size of his hands during his first presidential campaign.
“The mark criticizes Trump by using a double entendre, invoking a memorable exchange from a Republican presidential primary debate, while also expressing Elster’s view about the ‘smallness of Donald Trump’s overall approach to governing as president of the United States,’” Elster’s attorneys said in court papers. They urged the Supreme Court not to hear the appeal.
Elster filed his registration application in 2018, while Trump was still president. The office rejected the application in 2019, and the Biden administration eventually inherited the legal fight.
The Supreme Court in recent years has tossed out federal bans on the registration of disparaging and lewd or vulgar trademarks. The court is currently considering a trademark fight over a chewable dog toy that mimics the iconic Jack Daniel’s whiskey bottle.
The justices will hear arguments and rule in their 2023-24 term, which starts in October. The case is Vidal v. Elster, 22-704.
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