U.S. Supreme Court Affirms USPTO’s Rejection Of ‘Trump Too Small’ Trademark

U.S. Supreme Court Affirms USPTO’s Rejection Of ‘Trump Too Small’ Trademark

In a recent decision, the U.S. Supreme Court has unanimously upheld the US Patent and Trademark Office’s (USPTO) decision to refuse the registration of the trademark “Trump too small.” The Court ruled that the Lanham Act’s “Names Clause,” which bars the registration of trademarks consisting of or comprising a name identifying a particular living individual without their written consent, does not infringe on First Amendment rights.

The case originated in 2016 after a Presidential primary debate between Donald Trump and Senator Marco Rubio. Inspired by their exchange, the respondent sought to trademark the phrase “Trump too small” for shirts and hats. The USPTO denied the registration based on the Names Clause. This decision was affirmed by the Trademark Trial and Appeal Board, which rejected the respondent’s argument that the Names Clause infringed on his First Amendment right to free speech. The Federal Circuit, however, reversed the Appeal Board’s decision, prompting the Undersecretary of Commerce for Intellectual Property and Director of the USPTO to seek review from the Supreme Court.

The full bench, consisting of Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson, unanimously agreed with the USPTO’s position. The Court held that the Names Clause “does not violate the First Amendment.”

In its analysis, the Court emphasized the distinction between content-based and content-neutral regulations. It noted that “a content-based regulation targets speech based on its communicative content,” making it “presumptively unconstitutional.” However, the Court observed that the Names Clause does not discriminate based on viewpoint, as it “does not single out a trademark based on the specific motivating ideology or the opinion or perspective of the speaker.” The clause applies universally to any proposed trademark containing a person's name.

Delving into the history of trademark law in the United States, the Court pointed out that the first federal trademark law, enacted in 1870, contained content-based prohibitions on what could be trademarked. This content-based nature continued with the Lanham Act of 1946. The Court concluded that “this history demonstrates that restrictions on trademarks have always turned on a mark’s content and have existed harmoniously alongside the First Amendment from the beginning.”

The Court also highlighted that the Names Clause is grounded in the common-law tradition, which protects a person’s right to their own name. It noted that “a tradition of restricting the trademarking of names has coexisted with the First Amendment,” and that the clause “reflects the common-law tradition by prohibiting a person from obtaining a trademark of another living person’s name without consent, thereby protecting the other’s reputation and goodwill.” This approach aligns with trademark law’s role in identifying the source of goods and ensuring consumers are not misled about the origin of products.