Supreme Court Hands Activist a Loss for ‘Trump Too Small’ Trademark Attempt

A labor lawyer’s brazen attempt to trademark the innuendo “Trump Too Small” was rejected by the Supreme Court on Thursday, who argued that the federal trademark office did not violate the man’s First Amendment when it rejected his trademark application.

In a unanimous vote, the court said that under federal law, trademarks may not be granted involving the names of living individuals, without their written consent.

“Our courts have long recognized that trademarks containing names may be restricted. And these name restrictions served established principles,” Justice Clarence Thomas wrote in the court's opinion. “This history and tradition is sufficient to conclude that the names clause — a content-based, but viewpoint-neutral, trademark restriction — is compatible with the First Amendment. We need look no further.”

Californian and Democratic activist Steve Elster attempted to trademark the phrase after a viral moment between then business mogul Donald Trump and Sen. Marco Rubio (R, Fla.) in 2016 when the two were both vying for the Republican nomination for president. After Trump continually called Rubio “Little Marco,” the senator fought back on the campaign trail by calling Trump's hands small.

“You know what they say about men with small hands,” Rubio said, then pausing to wait for the crowd to laugh at the innuendo. “You can’t trust ’em!”

In a presidential debate on March 3, 2016 in Detroit, Michigan, Trump showed off his hands to the crowd.:

“Look at those hands. Are they small hands?” Trump asked at the debate. “If they're small, something else must be small. I guarantee you, there's no problem. I guarantee it.”

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Elster applied for the trademark with the U.S. Patent and Trademark Office in 2018 to use on shirts and hats he was selling. The Patent and Trademark Office then rejected the application, utilizing the Lanham Act in their decision, which states that federal law disallows trademarks that use a person’s name without their consent.

When the U.S. Court of Appeals for the Federal Circuit reviewed the rejection, it unanimously decided that the Lanham Act was unconstitutional, and argued that it did not trump an individual’s ability to criticize a government official or public figure.

The Supreme Court’s decision, though, argues unanimously that the Lanham Act and the “name clause” do not violate the First Amendment, and neither did the U.S. Patent and Trademark Office in their rejection.

Thomas also said that the case was narrow in scope, and did not require further questioning and decisioning into trademark rights, leaving space open for further cases on the matter.

Estler will still be able to sell merchandise with the phrase on it, as well as the hand gesture accompanying it, just without a trademark.“Critically, the denial did not prevent Elster from communicating his message. It also did not restrict his preferred mode of expression,” wrote Justice Sonya Sotomayor in a concurring opinion.

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