The Supreme Court sounds ready to rule that a Californian cannot trademark T-shirts with Trump’s name
David G SavageNovember 1, 2023
Supreme Court justices sounded ready Wednesday to rule that a T-shirt bearing the phrase “Trump Too Small” cannot be registered as a trademark by a California attorney seeking the exclusive right to sell clothing bearing the slogan .
Trump is not a party in the Vidal vs. Elster, but has objected in the past when companies and others tried to use his name.
In arguments Wednesday, Biden’s lawyers urged the court to deny the trademark for the disputed shirts, but their position was unrelated to the message, which is critical of the former president.
Since 1946, Congress has prohibited the registration of a trademark that includes a name or image that identifies “a particular living individual,” attorneys said.
When they passed this provision, lawmakers were primarily interested in preventing the use of a president or former president’s name as a means to advertise products. They cited examples like “George Washington” coffee or “Abe Lincoln” gin.
Assistant Attorney General Malcolm Stewart described a trademark as “a requirement for a federal benefit, and not as a restriction on freedom of expression.”
He said California attorney and T-shirt entrepreneur Steve Elster has the right to sell his “Trump Too Small” T-shirts, but not “an exclusive right” to the phrase.
Elster said he was amused in 2016 when Republican presidential candidates exchanged comments during a debate about the size of Trump’s hands. Senator Marco Rubio of Florida, who had mocked Trump as “Little Marco,” asked Trump to raise his hands, which he did.
After Trump won the election, Elster decided to sell T-shirts that read “Trump Too Small,” which criticized Trump’s performance on civil rights, the environment and other issues.
He was free to do so, but the Patent and Copyright Office denied his request to trademark the term for his exclusive use.
When he appealed the denial, a federal appeals court ruled that his trademark phrase was political commentary protected by the First Amendment.
Attorney General Elizabeth Prelogar appealed on behalf of the government, urging the Supreme Court to overturn that decision.
In arguments Wednesday, Judge Clarence Thomas said he didn’t see how the trademark denial limited free speech, since Elster was free to sell his T-shirts and use the phrase.
Chief Justice John G. Roberts Jr. said upholding Elster’s trademark could restrict freedom of expression because it would deter others from using the disputed expression.
Judge Brett M. Kavanaugh said it was reasonable for Congress to decide not to help others profit from the use of someone’s name.

Fernando Dowling is an author and political journalist who writes for 24 News Globe. He has a deep understanding of the political landscape and a passion for analyzing the latest political trends and news.