Mock Donald Trump’s masculinity all you want. But if you call it ‘too small’, you can’t trademark it.
The Supreme Court said Thursday in a ruling that combined First Amendment law, a longstanding trademark rule and a playful insult about the former president.
The case was brought by a California attorney who had filed a federal trademark for the exclusive right to use the phrase “Trump too small” on T-shirts and hats. The U.S. Patent and Trademark Office denied his application because federal law prohibits trademarks that use the names of living people without their permission.
The lawyer, Steve Elster, argued that the ban violates his right to free speech.
The Supreme Court unanimously disagreed — but the justices split into different camps over why.
Judge Clarence Thomas wrote an opinion that was largely joined by most of his conservative colleagues, highlighting a long tradition of individuals gaining control over trademark protections covering their names.
In agreement, Justice Amy Coney Barrett wrote that she saw less relevance to history, but ultimately concluded that the restriction passes constitutional muster. Each of the three liberal justices signed at least part of Barrett’s concurrence.
Elster’s trademark denial does not prohibit him from making or selling “Trump Too Small” merchandise. Without any trademark protection for the phrase, other Trump tormentors can do the same.
The “Trump too small” insult stems from an exchange of taunts between Trump and senator. Marco Rubio from Florida when the pair were rivals for the Republican presidential nomination in 2016.
Trump often mocked Rubio as “Little Marco,” and in response, Rubio drew attention to the modest size of Trump’s hands during a campaign stop.
The exchange prompted Trump to defend the size of his hands during a Fox News debate in March 2016 and to acknowledge the sexual undertones of Rubio’s claim.
“Look at those hands! Are they small hands?” Trump said as he raised his hands for viewers to see. “And he referred to my hands: ‘If they’re small, something else must be small.’ I guarantee you there won’t be a problem, I guarantee that.”
Rubio was much more conciliatory toward Trump while he was president and in recent years. The Florida senator is now considered a potential vice presidential pick for Trump as he tries to win back the White House in November.
Thursday’s Supreme Court ruling referred only in vague terms to the meaning of the phrase “Trump too small.” Thomas’ opinion noted that the trademark Elster sought was for the use of the taunt “accompanied by a hand gesture.”
A concurrence from Justice Sonia Sotomayor, joined by her two liberal colleagues, quoted from a legal filing in which Elster said his proposed trademark was intended to “convey that some characteristics of President Trump and his policies are minor.”
