Where Ingenuity Thrives®

Supreme Court Rejects “TRUMP TOO SMALL” Trademark

by | Jun 19, 2024 | Blog, Trademark Law

In a unanimous decision in Vidal v. Elster, 22-704, 06-13-2024, ___ U.S. ___, 2024 WL 1234567 (U.S. June 13, 2024), the U.S. Supreme Court held that the Lanham Act’s names clause — which prohibits the registration of a mark that “[c]onsists of or comprises a name … identifying a particular living individual except by his written consent” — does not violate the First Amendment.  This decision represents a significant ruling in the intersection of trademark law and free speech. This case centers on the constitutional limits of trademark registration, particularly regarding the disparagement clause and its application to political speech.


Steve Elster sought to register the trademark “TRUMP TOO SMALL” for use on T-shirts and other merchandise. This phrase was derived from a comment made during a presidential debate in 2016, which had gained considerable public attention. The United States Patent and Trademark Office (USPTO) denied Elster’s application, citing the Lanham Act’s prohibition against registering trademarks that could be seen as disparaging.

Elster challenged the denial, arguing that the disparagement clause infringed upon his First Amendment rights. The case ascended through the courts, ultimately reaching the Supreme Court.

Supreme Court’s Analysis

SCOTUS weighed the constitutional protections of free speech against the regulatory framework of trademark law, finding that the USPTO’s denial of Elster’s trademark application violated the First Amendment. Here, the Court reached a plurality decision, where several of the justices have different reasoning for reaching the same conclusion.

Key Points of the Decision

  • First Amendment Protections: The Court reinforced that the First Amendment protects expressive conduct, including political criticism. Trademarks, even those that might disparage public figures, fall within this scope of protection.
  • Disparagement Clause: The Court reiterated that the disparagement clause of the Lanham Act is constitutional. The ruling affirmed that the government can impose restrictions on speech based on the content or viewpoint expressed under certain conditions.


The Supreme Court’s ruling in Vidal v. Elster will likely impact how the USPTO evaluates future trademark applications involving political or potentially disparaging content. The decision underscores the judiciary’s role in balancing the government’s interest in regulating commerce with the fundamental rights enshrined in the Constitution. While the Court held that section 2(c) of the Lanham Act is not unconstitutional and TRUMP TOO SMALL is unregistrable without Trump’s consent, the Supreme Court was careful to note that this particular decision is a narrow one, leaving open the door for constitutional challenges to other viewpoint-neutral content-based trademark restrictions.

FindLaw Network