The justices of the U.S. Supreme Court appeared skeptical of an attempt 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 target. But his name and image were the issue.
The case dates back to a presidential primary 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 said, with a knowing smirk.
Two years later, part-time Democratic activist Steve Elster applied to trademarkthe phrase “TRUMP TOO SMALL” for use on T-shirts. The Patent and Trademark office rejected the proposed mark because federal law bars trademark registration of a living person’s name without his consent. The trademark office said that nothing prevents Elster or anyone else from using the phrase, but without 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, however, had few, if any takers at the Supreme Court Wednesday.
“The question is, is this an infringement on speech? And the answer is no,” said Justice Sonia Sotomayor. “He can sell as many shirts with this [Trump Too Small] saying as he wants.”
Justice Clarence Thomas made a similar point in questioning Elster’s lawyer, Jonathan Taylor, who conceded that without…
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