Mock Donald Trump’s manhood all you want. But if you call him “too small,” you’re not allowed to trademark it.
So said the Supreme Court on Thursday in a ruling that combined First Amendment law, a long-standing trademark rule and a playground insult about the former president.
The case was brought by a California lawyer who sought a federal trademark for the exclusive right to use the phrase “Trump too small” on T-shirts and hats. The U.S. Patent and Trademark Office denied his application because federal law prohibits trademarks that use the names of living people without their consent.
The lawyer, Steve Elster, contended that the prohibition violates his free speech rights.
The high court unanimously disagreed — but the justices fell into different camps about why.
Justice Clarence Thomas wrote an opinion that was joined in large part by most of his conservative colleagues and emphasized a long tradition of allowing individuals control over trademark-type protections related to their names.
In a concurrence, Justice Amy Coney Barrett wrote that she saw less relevance to the history but ultimately concluded that the restriction passes constitutional muster. Each of the three liberal justices signed on to at least some of Barrett’s concurrence.
The denial of the trademark to Elster does not prohibit him from making or selling “Trump too small” merchandise. Without any trademark protection for the phrase, other Trump tormentors can do so, too.
The “Trump too small” insult originates from an exchange of taunts between Trump and Sen. Marco Rubio of Florida when the pair were rivals for the Republican presidential nomination in 2016.
Trump often derided Rubio as “Little Marco,” and in response, during a campaign stop, Rubio called attention to the modest size of Trump’s hands.
The exchange prompted Trump to defend the size of his hands during a March 2016 Fox News debate and to acknowledge the sexual overtones to Rubio’s claim.
"Look at those hands! Are they small hands?" Trump said as he raised his hands for viewers to see. "And, he referred to my hands: 'If they're small, something else must be small.' I guarantee you there's no problem — I guarantee."
Rubio was much more conciliatory toward Trump while he served as president and in recent years. The Florida senator is now considered a potential vice presidential pick for Trump as he tries to win back the White House in November.
The high court’s ruling Thursday referred to the meaning of the “Trump too small” phrase only in vague terms. Thomas’ opinion noted that the trademark Elster sought was for use of the taunt “accompanied by a hand gesture.”
A concurrence by Justice Sonia Sotomayor, joined by her two liberal colleagues, quoted from a legal filing in which Elster said his proposed trademark was intended to “convey that some features of President Trump and his policies are diminutive.”
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