The justices of the U.S. Supreme Court appeared skeptical of an try by a part-time Democratic activist to trademark the phrase “Trump too small” and put it on T-shirts.
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Drew Angerer/Getty Images
The justices of the U.S. Supreme Court appeared skeptical of an try by a part-time Democratic activist to trademark the phrase “Trump too small” and put it on T-shirts.
Drew Angerer/Getty Images
Donald Trump finally got to the Supreme Court on Wednesday. Indirectly. He was not a plaintiff, a defendant or a goal. But his identify and picture have been the difficulty.
The case dates again to a presidential main debate to 2016 and Sen. Marco Rubio’s mocking of candidate Trump as having “small hands.”
“He hit my hands,” Trump protested. “Look at these hands, are these small hands?” And, “If they’re small, something else must be small. I guarantee you there’s no problem. I guarantee,” he mentioned, with a figuring out smirk.
Two years later, part-time Democratic activist Steve Elster utilized to trademarkthe phrase “TRUMP TOO SMALL” for use on T-shirts. The Patent and Trademark workplace rejected the proposed mark as a result of federal regulation bars trademark registration of a residing individual’s identify with out his consent. The trademark workplace mentioned that nothing prevents Elster or anybody else from utilizing the phrase, however with out a trademark.
The U.S. Court of Appeals for the Federal Circuit disagreed, ruling that the denial of the trademark violated Elster’s free speech rights.
That argument, nevertheless, had few, if any takers on the Supreme Court Wednesday.
“The question is, is this an infringement on speech? And the answer is no,” mentioned Justice Sonia Sotomayor. “He can sell as many shirts with this [Trump Too Small] saying as he wants.”
Justice Clarence Thomas made the same level in questioning Elster’s lawyer, Jonathan Taylor, who conceded that with out a trademark his shopper can nonetheless make and market as many shirts or mugs as he needs with the logo “Trump Too Small.”
So, requested Thomas, “What speech is precisely being burdened?”
Taylor replied that Elster is being denied “important rights and benefits” which are “generally available to all trademark holders who pay the registration fee, and he is being denied that “solely as a result of his mark expresses a message a couple of public determine.”
In different phrases, the denial of the trademark signifies that Elster cannot cost others a charge for utilizing the phrase “Trump too small.”
That prompted Justice Elena Kagan to observe that the courtroom has repeatedly mentioned that “as long as its not viewpoint based, government… can give benefits to some and not … to others.”
Justice Neil Gorsuch chimed in to say that “there have always been content restrictions of some kind” on emblems. Justice Brett Kavanaugh agreed, noting that “Congress thinks it’s appropriate to put a restriction on people profiting off commercially appropriating someone else’s name.”
And Justice Ketanji Brown Jackson added that a “trademark is not about the First Amendment.” It’s “about source identifying and preventing consumer confusion.”
And lastly, there was this from Chief Justice John Roberts: “What do you do about the government’s argument that you’re the one undermining First Amendment values because the whole point of the trademark, of course, is preventing other people from doing the same thing. If you win a trademark for the slogan ;Trump Too Small,’ other people can’t use it, right?”
If that basically is an issue, replied lawyer Taylor, then Congress can repair it. But he did not say how.
Bottom line on the finish of Wednesday’s argument? Yes, Virginia, there ARE some issues that Supreme Court justices apparently do agree on.