[1/2]Republican U.S. presidential candidate Marco Rubio and rival candidate Donald Trump (R) speak simultaneously at the U.S. Republican presidential candidates debate in Detroit, Michigan, March 3, 2016. REUTERS/Jim Young/File Photo Acquire Licensing Rights
WASHINGTON, Oct 27 (Reuters) – “Trump Too Small” – a phrase mocking former President Donald Trump that a California lawyer intended to slap on T-shirts – instead has become the center of another U.S. Supreme Court battle exploring the intersection of trademark law and free speech rights.
The justices are set to hear arguments on Wednesday in the U.S. Patent and Trademark Office’s appeal of a lower court’s decision that reversed the agency’s denial of attorney Steve Elster’s 2018 trademark application for “Trump Too Small.” At issue is whether the U.S. Constitution’s First Amendment free speech protections for criticism of public figures outweigh the agency’s concerns over Trump’s rights, as the lower court found.
The agency will try to convince the justices to uphold a 1946 federal law that bars trademarks featuring a person’s name without consent. President Joe Biden’s administration is seeking to protect Trump – the man he defeated in the 2020 U.S. election – from, in its view, having his name misappropriated in commerce. Trump is not personally involved in the case.
Elster has argued that a ruling favoring the government would give politicians improper control over speech about them. The agency, on the other hand, has said that trademarks like Elster’s could restrict the free speech of others on political matters by giving legal ownership of certain words to specific people.
Trademarks protect identifiers of sources of goods, like brand names, logos and advertising slogans.
The Supreme Court in recent years has struck down two trademark laws based on free speech concerns. It ruled in favor of Asian-American rock band The Slants in 2017 against a ban on trademarks that “disparage,” and in favor of artist Erik…
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