The Supreme Court is set to hear arguments regarding a case involving the Patent and Trademark Office (PTO) and the First Amendment.
The case revolves around the denial of a trademark registration for a political slogan criticizing former President Donald Trump.
The PTO argued that the mark identified Trump without his consent. (Trending: It’s Time For Donald Trump To Drop Out)
NEW: The Supreme Court is set to hear arguments in the case of Katherine K. Vidal, v. Steve Elster on Wednesday on whether it is a violation of the First Amendment for the government to deny Elster a trademark for a "Trump too small" T-shirt that mocks Trump tiny penis. pic.twitter.com/Z9jPajYAVF
— Republicans against Trump (@RpsAgainstTrump) November 1, 2023
A federal circuit court reversed the decision, citing First Amendment protections.
“The Supreme Court will hear arguments over whether the Patent and Trademark Office (PTO) violated the First Amendment when it refused the registration of a political slogan on T-shirts that criticizes former President Donald Trump without his consent,” the report found.
“In 2017, Steve Elster, a politically active Democrat attorney in California, wanted to get the phrase ‘Trump Too Small’ printed on T-shirts to sell,” the report added.
“The phrase originated from an exchange on the 2016 debate stage between Trump and Sen. Marco Rubio, R-Fla. The Florida senator made a crude joke in reference to the size of the former president’s hands.” (Trending: Judge Declines To Recuse From Trump 2024 Ballot Case)
A 'trump too small' t-shirt trademark infringement case is going to the Supreme Court. I guess the First Amendment is a one lane highway on this issue, too.
I'm going to buy 100. pic.twitter.com/TVUbP5TE6G
— benpenderson (@benpenderson) October 27, 2023
The Justice Department has appealed the case to the Supreme Court, arguing that the PTO has the constitutional authority to block the trademark request.
The outcome of the case could have implications for political criticism and trademark registrations. Arguments are scheduled to begin on Wednesday.
“When registration is refused because a mark ‘[c]onsists of or comprises a name…identifying a particular living individual’ without ‘his written consent,’ ‘[n]o speech is being restricted; no one is being punished,’” the DOJ’s petition to the high court says.
Fara Sunderji, partner at international law firm Dorsey & Whitney, says, “Despite outward appearances, this case is really not about Trump or the size of his policies or (body parts).”
“Will this decision restrict speech — namely political criticism in a time where the country is so divided as the 2024 candidates are starting up their engines? The trademark applicant, Mr. Elster, would have us believe that, yes, that is what is at stake,” says Sunderji.
“So, what is the potential outcome? If the Court upholds the Federal Circuit’s opinion, will the USPTO be inundated with trademark applications for every political phrase containing a candidate’s name in the 2024 election? Probably not. Will daily life be flooded with t-shirts containing slogans with all the 2024 candidates’ names by unrelated third parties? I hope not,” concludes Sunderji.
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