The Supreme Court agreed on Monday to decide whether a California lawyer may trademark the phrase “Trump too small,” a reference to a taunt from Senator Marco Rubio, Republican of Florida, during the 2016 presidential campaign. Mr. Rubio said Donald J. Trump had “small hands,” adding: “And you know what they say about guys with small hands.”
The lawyer, Steve Elster, said in his trademark application that he wanted to convey the message that “some features of President Trump and his policies are diminutive.” He sought to use the phrase on the front of T-shirts with a list of Mr. Trump’s positions on the back. For instance: “Small on civil rights.”
A federal law forbids the registration of trademarks “identifying a particular living individual except by his written consent.” Citing that law, the Patent and Trademark Office rejected the application.
A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that the First Amendment required the office to allow the registration.
“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” Judge Timothy B. Dyk wrote for the court. “As a result of the president’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-president’s approach to governance, the government has no interest in disadvantaging Elster’s speech.”
The size of Mr. Trump’s hands has long been the subject of commentary. In the 1980s, the satirical magazine Spy tormented Mr. Trump, then a New York City real estate developer, with the recurring epithet “short-fingered vulgarian.”
In 2016, during a presidential debate, Mr. Trump addressed Mr. Rubio’s critique.
“Look at those hands, are they small hands?” Mr. Trump said, displaying them. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”
The Biden administration appealed the Federal Circuit’s ruling to the Supreme Court. Solicitor General Elizabeth B. Prelogar said Mr. Elster was free to discuss Mr. Trump’s physique and policies but was not entitled to a trademark.
The Supreme Court has twice struck down provisions of the trademark law in recent years on First Amendment grounds.
In 2019, it rejected a provision barring the registration of “immoral” or “scandalous” trademarks.
That case concerned a line of clothing sold under the brand name FUCT. When the case was argued, a government lawyer told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”
Justice Elena Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”
A bedrock principle of First Amendment law, she wrote, is that the government may not draw distinctions based on speakers’ viewpoints.
In 2017, a unanimous eight-justice court struck down another provision of the trademarks law, this one forbidding marks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”
The decision, Matal v. Tam, concerned an Asian American dance-rock band called The Slants. The court split 4 to 4 in much of its reasoning, but all the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints.
The new case, Vidal v. Elster, No. 22-704, is arguably different, as the provision at issue does not appear to make such distinction. In his Supreme Court brief, Mr. Elster responded that “the statute makes it virtually impossible to register a mark that expresses an opinion about a public figure — including a political message (as here) that is critical of the president of the United States.”
