WASHINGTON – The Supreme Court on Thursday unanimously ruled against a man who wants to trademark the suggestive phrase “Trump too small.”
The justices upheld the government’s decision to deny a trademark to Steve Elster, a California man seeking exclusive use of the phrase on T-shirts and potentially other merchandise. It is one of several cases at the court relating to former President Donald Trump, including major cases related to the violent attack on the Capitol in 2021. Earlier this term, the court laid out standards for when public officials can be sued for blocking critics from their social media accounts. These cases were also related to Trump.
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The Justice Department supported President Joe Biden’s predecessor and presumptive opponent in the 2024 election. Government officials said the phrase “Trump too small” could still be used, just not trademarked because Trump had not consented to its use. Indeed, “Trump too small” T-shirts can already be purchased online.
Elster’s lawyers had argued that the decision violated his free speech rights, and a federal appeals court agreed.
At arguments, Chief Justice John Roberts said that if Elster were to win, people would race to trademark “Trump too this, Trump too that.”
Although all nine justices agreed in rejecting Elster's First Amendment claim, they used differing rationales that stretched over 53 pages of opinions.
Twice in the past six years, the justices have struck down provisions of federal law denying trademarks seen as scandalous or immoral in one case and disparaging in another.
Elster's case dealt with another measure calling for a trademark request to be refused if it involves a name, portrait or signature “identifying a particular living individual” unless the person has given “written consent.”
The phrase at the heart of the case is a reference to an exchange Trump had during the 2016 presidential campaign with Florida Sen. Marco Rubio, who was then also running for the Republican presidential nomination.
Rubio began the verbal jousting when he told supporters at a rally that Trump was always calling him “little Marco” but that Trump — who says he is 6 feet and 3 inches tall — has disproportionately small hands. “Have you seen his hands? ... And you know what they say about men with small hands,” Rubio said. “You can’t trust them.”
Trump then brought up the comment at a televised debate on March 3, 2016.
“Look at those hands. Are they small hands? And he referred to my hands — if they’re small, something else must be small. I guarantee you there’s no problem. I guarantee you,” he said.
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This story has been corrected to reflect that the court earlier this term, rather than last week, laid out standards for when public officials can be sued for blocking critics from their social media accounts.