At The Basis Point, we do a lot of work with trademarks so high profile cases are always educational. The latest is a Trump Too Small trademark case that’s headed to the Supreme Court during its next term that runs from October 2023 to June 2024.
A California employment lawyer named Steve Elster in 2018 filed for a Trump Too Small trademark in U.S. Patent and Trademark Office (USPTO) categories 22 and 39, which are textiles and packaging, respectively.
In less technical terms, he markets and sells Trump Too Small merchandise on his TrumpTooSmall.com website, and this case will determine whether he can continue to do so.
The USPTO rejected Elster’s 2018 filing (an excerpt of which is shown above), claiming the public would immediately associate the word ‘Trump’ with the then-President.
Here’s how CNBC sums up this Trump Too Small trademark case:
“The court on Monday [June 5, 2023] agreed to consider whether Steve Elster could register the trademark for the phrase — a double-entendre meant to insinuate a correspondingly small penis — amid government claims that it would require the written approval of Trump himself.”
One key tenet of trademark approvals and disputes is whether you’re openly and actively defending your mark in the marketplace.
Elster seems to meet this threshold with an active site that’s overtly branded with the same branding as his filing with the USPTO.
But in cases like this where a living person’s name is used, it typically requires the person’s written consent. This is what the USPTO first claimed.
That’s one side of the case the Supreme Court will hear. The other side is free speech.
CNBC reports that a February 2022 U.S. Court of Appeals for the Federal Circuit ruling said the USPTO rejection violated Elster’s constitutional free speech rights under the First Amendment.
This sets up the Supreme Court Trump Too Small trademark case.
The fact that the use of these words is disparaging won’t help the case for approval. But free speech might.
If you’ve ever been through the USPTO process, you know it’s there’s no trademark detail to small to debate.
So this case will be interesting.
Full CNBC briefing on this case below. And here’s another interesting one on how street art king Banksy schools us on trademark defense.