Supreme Court Likely to Uphold Rejection of "Trump Too Small" Trademark Claim

Justices highlight historical tradition of prohibiting certain content in trademarks and clarify that refusal to register does not inhibit free speech.

The U.S. Supreme Court seems likely to support the decision from the U.S. Patent and Trademark Office, which rejected a trademark for the phrase 'Trump Too Small.' This phrase, sought to be used on merchandise by attorney Steve Elster, was considered a political message about former President Trump and his policies.
Elster's application was rejected under a provision of the Lanham Act, stating that a trademark will be refused registration if it consists of the name of a living person without written consent. Some justices seemed to agree this provision did not violate free speech, as Elster could still sell merchandise featuring the phrase without securing a trademark.
Justices Neil Gorsuch and Brett Kavanaugh highlighted the country's long history of limitations on what can be trademarked. On the other hand, Chief Justice John Roberts suggested that granting the trademark could curb the free speech of others, as restrictions may be placed on similar expressions if Elster's trademark is violated.
Elster's attorney pushed back against the suggestion that his client's free speech rights weren't infringed upon, arguing that the rejection effectively precludes any marks that criticize public figures, while permitting their self-promoting positive messages.
The outcome of the case, following the oral arguments, seems to point towards upholding the law, although it is not yet certain what reasoning will be used. A decision by the Supreme Court is expected by end of June 2024.