In 2024, the U.S. Supreme Court will decide whether the slogan “Trump Too Small” can become a registered mark. Steve Elster is an attorney and T-shirt maker who wants to sell shirts with the slogan, which references the former president of the United States. Prior SCOTUS trademark cases, such as Iancu v. Brunetti and Matal v. Tam, dealt with similar issues of attempts to register disparaging or immoral marks and in those cases, the Court ultimately ruled that federal trademark law cannot prohibit registration of such marks, as it is a violation of the First Amendment. However, in the Elster case, the government argues that the issue is less about the message and more about the fact that the Lanham Act restricts registering living public figures' names without their consent.
Finnegan partner Mark Sommers told Law360, "It turns on whether the individual consented, not whether it's offensive or critical or favorable or anything.There's no viewpoint, and so I think that's the line that you can draw pretty succinctly between the Elster case and decisions in Tam and Brunetti."
