SCOTUS Made the Right Call on Presidential Candidate Trademark

​Trademarks support brand integrity in the marketplace, including through certain restrictions on commercial speech. But what about the use of a living person’s name, specifically “Trump Too Small”? (If you don’t know what this means, we’ll let you Google it.) Merchant Steve Elster wanted to register that phrase as a trademark to sell T-shirts. The U.S. Patent and Trademark Office denied his application. A lower court, however, held that the government violated Elster’s First Amendment rights.
 
The Supreme Court today, in a unanimous decision, overturned that ruling and held that the phrase with the former president’s name cannot be trademarked. “Our courts have long recognized that trademarks containing names may be restricted,” Justice Clarence Thomas wrote for the majority. But such trademark restrictions, while “content-based” must be “viewpoint neutral.”
 
Justice Barrett wrote that the “government can reasonably determine that, on the whole, protecting marks that include another living person’s name without consent risks undermining the goals of trademark.” This is in keeping with a 1946 trademark law that bans the registration of any trademark that uses a living person’s name without their written consent.
 
Justice Sonia Sotomayor in a concurrence wrote that First Amendment considerations should be applied. She emphasized that First Amendment constraints can be respected without undermining traditional trademark rules.
 
Both sides have a point in law and in principle. Not only did the Court protect the name of a living person, it also refused to enforce a government monopoly on a phrase about a presidential candidate. To take a more generic example, suppose someone trademarked a phrase about Trump or Biden being too old, or too extreme, or too apt to take vacations. Imagine the complexities of a marketplace with thousands of products engaging in a national discussion about presidential candidates with select phrases off limits to anyone who didn’t want to pay or seek written permission to use them.
 
The Court was right to prevent commercial considerations from scissoring out pieces of the national debate. As a result of the Court’s decision, the public remains free to debate – in print, on T-shirts, on mugs, or on TV – the Goldilocks question of whether Trump is too small, too large, or just right. Now that is free speech.