California employment attorney Steve Elster had an idea in 2018, back when current GOP 2024 presidential frontrunner Donald Trump was president. He wanted to register the phrase “Trump Too Small” to use on shirts.
Following a rejection by the U.S. Patent and Trademark Office Elster appealed. Now, the case is on the calendar to be reviewed by the U.S. Supreme Court Wednesday.
“The question presented is as follows: Whether the refusal to register a mark under Section 1052(c) violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure,” said the review notice.
According to Oyez, Elster intended the mark to serve as political commentary on Trump and his policies. In an interview with the National Law Review, Elster said he was inspired by hearing Trump “defend the size of his manhood” when he was a presidential candidate in 2016.
“If he’s going to make the size of his features a political issue, well that’s now clearly a topic for political discussion,” said Elster. “It shouldn’t be, but he’s made it so.”
Trump mentioned Republican Florida Sen. Marco Rubio’s comments about his hands multiple times while on the campaign trail and connected it to the size of other parts of his anatomy.
“I do not want to go the rest of my life with people saying I have small hands,” Trump said during a rally in Orlando, Fla. Apparently, comments about his hands pre-dated the 2016 campaign.
In a 2015 Vanity Fair editor’s letter, Graydon Carter revealed that he took to calling Trump a “short-fingered vulgarian” in the pages of Spy magazine around 25 years prior. He said Trump would respond by sending photographs of himself with his hands circled in gold Sharpie.
“To this day, I receive the occasional envelope from Trump,” said Carter. “There is always a photo of him – generally a tear sheet from a magazine. On all of them he has circled his hand in gold Sharpie in a valiant effort to highlight the length of his fingers. I almost feel sorry for the poor fellow because, to me, the fingers still look abnormally stubby.”
HBO’s John Oliver mentioned the letter in an episode of “Last Week Tonight” when he also announced plans to trademark something related to Trump – the alleged original spelling of his surname, “Drumpf.” However, The Hollywood Reporter said an attempt to register the name was also refused by the patent office.
“Registration is refused because the applied-for mark consists of or comprises a name, portrait or signature identifying a particular living individual whose written consent to register the mark is not of record,” the application file stated, per the report.
Per documents provided by the Supreme Court, the Solicitor General, on behalf of Katherine K. Vidal, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO), petitioned the court for a writ of certiorari to review the judgment of the United States Court of Appeals for the Federal Circuit in Elster’s case.
“I expect that several of the justices will have no sympathy for the government’s position,” said Ronald Mann of SCOTUS Blog Friday, citing two other cases related to the Lanham Act. “Having said that, the justices splintered on the proper mode of analysis in the prior cases – filing three opinions in one and five in the other – so there well might be considerable debate about exactly how to justify the result. On that point, we’ll know a lot more by the end of the argument on Wednesday.”