Why ‘Trump Too Small’ Could be a Big Deal for the Trademarks Act

In a case that could have huge implications for the Lanham Act, the slogan “Trump Too Small” is again in the spotlight. The Supreme Court of the United States (SCOTUS) announced that it is reviewing the U.S. Patent and Trademark Offices’ (USPTO) challenge of a U.S. Court of Appeals for the Federal Circuit ruling that overturned the USPTO’s decision refusing to grant trademark registration for the phrase.

Steve Elster, a California-based lawyer and activist, tried to register the trademark “Trump Too Small,” a phrase birthed during a 2016 presidential debate, so he could print it as a slogan on shirts and hats. The USPTO denied Elster’s application, citing that the mark contravened the Lanham Act by including the surname of a living individual without his knowledge or permission.

Under the act, section 2(a) prohibits registering a trademark that falsely suggests a connection with a person, while section 2(c) of the act prohibits registering a trademark that consists of a name identifying a particular individual without that person's consent.

Elster has consistently stated to the court that this is a battle over who has the right to criticize politicians in the marketplace, and that the office has burdened political speech “by granting public figures a monopoly over speech about them in the marketplace.”

Mark Sommers told World IP Review that this case diverges from Tam and Brunetti in one crucial aspect. “Based on the Court’s prior decisions, it would be reasonable to assume that the Supreme Court would similarly strike down the provisions of Trademark Act Section 2(c) that are at issue in Vidal v. Elster,” he said.

Further, Mark noted, the Lanham Act bars registration of the mark ‘Trump too Small’ not because of what Elster said, but because he sought to enlist the publicity of another well-known public figure. The Supreme Court now has a fresh “opportunity to distinguish the section.”

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