WASHINGTON (CN) — The Supreme Court on Thursday quashed a political activist’s bid to trademark “Trump too small” T-shirts, finding no First Amendment right to the exclusive use of a slogan with the president’s name.
In a unanimous decision, the justices said prohibiting trademarks on someone else’s name without their permission was not discriminatory.
”The names clause does not facially discriminate against any viewpoint,” Justice Clarence Thomas wrote. “No matter the message a registrant wants to convey, the names clause prohibits marks that use another person’s name without consent.”
Steve Elster wanted the high court to grant him exclusive access to plaster the double entendre on T-shirts and hats that he intended to sell for a profit. His attempt at political commentary stemmed from a joke made by Senator Marco Rubio in 2016 where he made fun of the size of Donald Trump’s hands.
“You know what they say about men with small hands,” Rubio quipped.
Appearing offended by the insinuation, Trump defended himself at the next presidential debate.
“I guarantee you there’s no problem,” Trump said.
The U.S. Patent and Trademark Office shut Elster down when he attempted to trademark the viral moment, citing a section of trademark law that prohibits marks on public officials’ names without their consent.
The federal circuit found errors in the government’s analysis, finding that not allowing Elster access to the mark violated his free speech rights.
At the Supreme Court, the justices were tasked with determining if the First Amendment protected trademarks criticizing government officials.
Thomas, a George H. W. Bush appointee, wrote that blocks on trademarking names are based on their motivating ideology, not their viewpoint. Viewing the name prohibition as a content-based restriction, Thomas said the court needed to decide whether this kind of prohibition was constitutional for viewpoint-neutral trademarks.
To answer that question, the justice drew from the country's founding era.
“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,” Thomas wrote.
The justices agreed unanimously that content-based viewpoint-neutral trademark restrictions were constitutional, but the court split deeply as to why.
Justice Samuel Alito and Neil Gorsuch joined Thomas’ opinion in full. Chief Justice John Roberts and Justice Brett Kavanaugh split from his critique of the other justices’ concurring opinions.
In one of those opinions, Justice Amy Coney Barrett — joined by Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — disagreed with Thomas’s reliance on history. The Donald Trump appointee said she would have adopted a standard based on trademark law and First Amendment precedent.
Sotomayor wrote her own opinion, which Kagan and Jackson joined. The Barack Obama appointee mostly agreed with Barrett but would use precedent to conclude that heightened scrutiny does not apply to trademark registration.
“I’m quite a coalition builder,” Thomas said after he read the ruling from the bench.
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