First Amendment Challenge “Trump Too Small” Trademark Application
On November 1, 2023, the United States Supreme Court will hear a trump trademark application case that could have significant implications for the First Amendment and trademark law. The case, Vidal v. Elster, involves a challenge to a provision of the Lanham Act that prohibits the registration of trademarks that identify a living individual without that person’s consent.
The case began when Steve Elster sought to register “Trump Too Small” as a trademark application for use on t-shirts. The United States Trademark Office (USPTO) refused to register the mark, citing the Lanham Act. Elster appealed, and the case eventually made its way to the Supreme Court.
Elster argues that the Lanham Act provision violates the First Amendment by giving the government the power to censor expressive speech. The government argues that the provision is not about cencorship but about protecting the right of publicity, which is the right of an individual to control the commercial use of their name and likeness.
The Supreme Court has previously struck down two other provisions of the Lanham Act that restricted trademark registration on First Amendment grounds. In 2017, the Court held in Matal v. Tam that the government could not refuse to register a trademark (The Slants) which was disparaging. In 2019, the Court held in Iancu v. Brunetti (FUCT) that the government could not refuse to register a trademark that was immoral or scandalous.
It is unclear how the Supreme Court will rule in Vidal v. Elster. However, the case has drawn significant attention from free speech advocates and trademark lawyers alike. If the Court strikes down the Lanham Act provision, it would be a major victory for the First Amendment.
Potential Implications of a Decision in Vidal v. Elster
A decision in Vidal v. Elster could have a number of implications for the First Amendment and trademark law.
First Amendment Implications
If the Supreme Court strikes down the Lanham Act provision, it would be a reaffirmation of the First Amendment principle that the government cannot censor expressive speech simply because it dislikes the message. It would also send a message that the Court is serious about protecting free speech, even when it comes to controversial topics.
Trademark Law Implications
A decision in favor of Elster could also have a number of implications for trademark law. For example, it could lead to a more expansive understanding of what types of marks are eligible for trademark protection. It could also make it more difficult for individuals to prevent others from using their names or likenesses in commerce.
The Supreme Court’s decision in Vidal v. Elster is eagerly awaited by free speech advocates and trademark lawyers alike. The case could have a significant impact on the First Amendment and trademark law for years to come. If you would like assistance with a trademark application, contact one of our trademark attorneys.