The Supreme Court unanimously ruled against a man who wanted to trademark the suggestive phrase “Trump too small” on Thursday.
The justices agreed with the government’s decision to deny a trademark to Steve Elster, a man from California who wanted exclusive rights to use the phrase on T-shirts and possibly other products. This is one of several cases at the court related to former President Donald Trump, including important cases about the violent attack on the Capitol in 2021. Earlier this term, the court set standards for when public officials can be sued for blocking critics from their social media accounts. These cases were also related to Trump.
The Justice Department supported President Joe Biden’s predecessor and likely opponent in the 2024 election. Government officials said the phrase “Trump too small” could still be used, just not trademarked because Trump had not given permission for its use. In fact, “Trump too small” T-shirts can already be bought online.
Elster’s lawyers had argued that the decision violated his free speech rights, and a federal appeals court agreed with them.
During arguments, Chief Justice John Roberts said that if Elster were to win, people would rush to trademark phrases like “Trump too this” and “Trump too that.”
Although all nine justices agreed in rejecting Elster’s First Amendment claim, they used different reasons that took up 53 pages of opinions.
In the past six years, the justices have struck down two parts of federal law that denied trademarks seen as scandalous or immoral in one case and disparaging in another.
Elster’s case dealt with another law that says a trademark request should be refused if it involves a name, portrait, or signature “identifying a particular living individual” unless the person has given “written consent.”
The phrase at the center of the case is a reference to an exchange Trump had during the 2016 presidential campaign with Florida Senator Marco Rubio, who was also running for the Republican presidential nomination at the time.
Rubio started the verbal sparring when he told supporters at a rally that Trump was always calling him “little Marco” but that Trump — who says he is 6 feet and 3 inches tall — has disproportionately small hands. “Have you seen his hands? … And you know what they say about men with small hands,” Rubio said. “You can’t trust them.”
Trump then brought up the comment at a televised debate on March 3, 2016.
“Look at those hands. Are they small hands? And he referred to my hands — if they’re small, something else must be small. I guarantee you there’s no problem. I guarantee you,” he said.