Supreme Court Rules ‘Trump Too Small’ Trademark Violates Lanham Act

The U.S. Supreme Court unanimously ruled that rejecting Steve Elster’s trademark application for “Trump Too Small” did not violate free speech rights. The decision upheld the Lanham Act’s names clause, which prohibits registering a trademark containing a living person’s name without their consent. The Court determined that this restriction is based on the content of the trademark rather than its viewpoint. Despite differing interpretations among the justices, they agreed that the names clause does not breach the First Amendment, emphasizing the historical tradition of individuals controlling the use of their names in commerce.

Monica Riva Talley, director at Sterne Kessler and head of the firm’s trademark and brand protection practice explains why the court siding with the USPTO’s position did not violate the First Amendment and she notes “This decision should give some clarity as to the constitutionality of other types of “viewpoint neutral” marks deemed unregistrable in Section 2 of the Lanham Act, such as Section (b) relating to flags and insignia, or even geographical indications in Section (a).”