Vidal v. Elster

This case was brought by an individual who sought to register a trademark in the phrase “Trump Too Small”—referring to an insult that had been directed at Donald Trump when he was running for president in 2016—for use on shirts and other items of apparel. The Patent and Trademark Office denied the registration, because of provision of the trademark law prohibits registration of a trademark that includes the name of a living person without that person’s consent. On appeal, the Federal Circuit reversed the Office’s decision, holding that the phrase constituted political speech and that applying the statute to bar a trademark that criticizes a government official or public figure would violate the First Amendment. The Supreme Court then granted a petition to review that decision.

Public Citizen filed an amicus brief supporting reversal of the Federal Circuit’s decision. The brief argues that, because a trademark in a political slogan would constrain the ability of other members of the public to print the slogan on shirts for the purpose of expressing their own political views, the First Amendment bars the registration.