The United States Supreme Court is set to deliberate on a case concerning the intersection of First Amendment rights and privacy rights in the context of trademark registration.
The case revolves around a political slogan critical of former President Donald Trump, which was denied trademark registration by the Patent and Trademark Office (PTO).
The central question in this case is where the boundary lies between First Amendment protections and privacy rights when a trademark includes criticism of a public figure or government official.
The case began in 2017 when Steve Elster, a politically active Democrat attorney in California, sought to print the phrase "Trump Too Small" on T-shirts for sale. The slogan was inspired by a 2016 debate exchange between Trump and Senator Marco Rubio, R-Fla., where Rubio made a crude joke about the size of Trump's hands.
However, Elster's attempt to trademark the phrase was denied by the PTO, and the Trademark and Trial Appeal Board upheld the decision, citing that the mark identified Trump without his consent.
A federal circuit court later reversed this decision, stating that Elster's trademark was at "the heart of the First Amendment." The court held that the government had no plausible "interest in restricting speech critical of government officials or public figures in the trademark context."
The case was eventually escalated to the Supreme Court by the Justice Department, representing Katherine Vidal, under secretary of commerce for intellectual property. The Department argued that the Lanham Act, a federal statute designed to protect intellectual property in trademark designations, grants the PTO constitutional authority to reject Elster's trademark request.
The Department's petition to the Supreme Court states, "When registration is refused because a mark [c]onsists of or comprises a nameidentifying a particular living individual without his written consent, [n]o speech is being restricted; no one is being punished.'"
Fara Sunderji, a partner at international law firm Dorsey & Whitney, commented on the case, saying, "Despite outward appearances, this case is really not about Trump or the size of his policies or (body parts)." Sunderji further questioned whether the decision would restrict political criticism, especially as the 2024 election campaigns begin.
Sunderji speculated on the potential consequences of the case, asking, "If the Court upholds the Federal Circuits opinion, will the USPTO be inundated with trademark applications for every political phrase containing a candidates 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."
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