{"id":1165,"date":"2024-08-27T04:43:08","date_gmt":"2024-08-27T12:43:08","guid":{"rendered":"https:\/\/tbillicklaw.com\/?p=1165"},"modified":"2024-09-03T13:02:42","modified_gmt":"2024-09-03T21:02:42","slug":"the-lanham-acts-restrictions-on-calling-someone-out-with-your-trademark-implications-of-the-trump-too-small-case","status":"publish","type":"post","link":"https:\/\/tbillicklaw.com\/the-lanham-acts-restrictions-on-calling-someone-out-with-your-trademark-implications-of-the-trump-too-small-case\/","title":{"rendered":"The Lanham Act\u2019s Restrictions on Calling Someone Out with Your Trademark: Implications of the \u201cTrump Too Small\u201d Case"},"content":{"rendered":"\n

The \u201cTrump Too Small\u201d trademark dispute centers on Steve Elster\u2019s effort to register a politically charged phrase referring to former President Donald Trump for use on merchandise such as T-shirts. The US Patent and Trademark Office (USPTO) initially rejected Elster\u2019s application, citing the Lanham Act\u2019s Section 1052 (2)(c)<\/a>, which prevents trademarks from identifying living individuals without their consent. This battle brings into focus the delicate balance between trademark law and First Amendment rights, particularly when it comes to political commentary. In this piece, TBillick Law explores the intersection of the First Amendment and trademark rights in  Vidal v. Elster and the conflict over \u201cTrump Too Small.\u201d<\/p>\n\n\n\n

<\/a>Background<\/h2>\n\n\n\n

The Lanham Act, enacted in 1946, governs trademarks, service marks, and unfair competition. Section 1052 (2)(c) of the Act specifically prohibits the registration of a trademark that identifies a particular living individual without their written consent. This provision aims to protect individual privacy and prevent the commercial exploitation of their names without permission.<\/p>\n\n\n\n

Labor lawyer Steve Elster intended to use the phrase \u201cTrump Too Small\u201d on merchandise, including T-shirts, as a form of political commentary and filed for trademark protection with the US Patent and Trademark Office (USPTO), which the USPTO rejected. It based its rejection on Section 1052 (2)(c) of the Lanham Act, as the phrase clearly identifies former President Donald Trump and was submitted without his consent. According to the USPTO, allowing such a trademark would violate the legal protection intended by the Lanham Act.<\/p>\n\n\n\n

Elster argued that the phrase was a critique of Trump, particularly in a political context, and thus should be protected under the First Amendment. This clash between trademark law and free speech principles set the stage for a complex legal battle.<\/p>\n\n\n\n

<\/a>Legal Proceedings<\/h3>\n\n\n\n

Elster challenged the USPTO\u2019s decision in federal court, arguing it infringed on his First Amendment rights, as the phrase was political commentary. The Federal Circuit Court reversed the USPTO\u2019s decision, supporting Elster\u2019s claim that political speech is highly protected. They reasoned that the government\u2019s interest in protecting individual privacy was not strong enough to outweigh Elster\u2019s free speech rights, and although the restriction was content-based, it was viewpoint-neutral. The Federal Circuit emphasized the protection of political speech, but the US Supreme Court had a different interpretation.<\/p>\n\n\n\n

<\/a>The Supreme Court Reverses Course<\/h2>\n\n\n\n

The US Supreme Court heard the case in June 2023. Elster maintained that the phrase \u201cTrump Too Small\u201d was a form of political commentary and, therefore, should be protected under the First Amendment. Elster\u2019s legal team highlighted the importance of protecting political speech, especially when it involves public figures, as a cornerstone of free expression.<\/p>\n\n\n\n

In contrast, the government defended the Lanham Act\u2019s provisions, emphasizing the need to protect individual privacy and prevent unauthorized commercial use of personal names. The government\u2019s defense was built on:<\/p>\n\n\n\n