A California attorney’s First Amendment right to criticize public figures is at the heart of a trademark case that will now be heard before the Supreme Court.
Steve Elster first attempted to cash in by trademarking the phrase “Trump Too Small” in 2018, inspired by a remark made by Marco Rubio regarding the size of Donald Trump’s hands while campaigning in 2016.
Elster tried to register “Trump Too Small” as a federal trademark to use on shirts and other merchandise.
The U.S. Trademark Office rejected the use of Trump’s name without permission, which a U.S. appeals court ruled they were wrong to do.
Citing Elster’s application, the Federal Circuit said the name “invokes a memorable exchange” between Trump and Rubio from a 2016 presidential primary debate, and “aims to convey that some of Trump’s features and his policies are diminutive.”
In retaliation for Trump calling him “Liddle Marco,” Rubio mentioned the larger man’s unusually small hands to a campaign rally crowd in Virginia.
“And you know what they say about guys with small hands,” Rubio said as the audience laughed. “You can’t trust them.”
Trump, who has no ability to laugh at himself, hit back with his widdle baby fists.
“He hit my hands. Nobody has ever hit my hands,” Trump said of Rubio. “I’ve never heard of this one. Look at those hands.”
You mean these tiny hands, Mr. Tiny Hands?
The “small hands thing” has followed Trump ever since, much to his dismay and our delight.
By refusing Elster’s trademark registration for the phrase, the Trademark Office violated his constitutional free-speech rights, the appeals court ruled in their reversal.
“The government has no legitimate interest in protecting the privacy of Donald Trump, the least private name in American life,” Circuit Judge Timothy Dyk wrote in that decision.
I enjoy a sick burn in the middle of a legal ruling, don’t you?
Judge Dyk added that publicity rights which protect people’s use of their name in commerce “cannot shield public figures from criticism.”
But the Trademark Office dug in and appealed the appeal, which brings us to the Supreme Court agreeing to hear the case.
Guess who Twitter’s rooting for?
The Supreme Court will decide whether the First Amendment protects a t-shirt maker's right to register the trademark "TRUMP TOO SMALL" as a satirical reference to the infamous debate exchange in which Trump and Rubio discussed the size of their genitals. https://t.co/5t2Iaaybxd pic.twitter.com/Wq8eNBNG4y
— Mark Joseph Stern (@mjs_DC) June 5, 2023
TRUMP TOO SMALL? This cert grant will cause lots of us to keep mentioning TRUMP TOO SMALL! Eventually I will teach TRUMP TOO SMALL and test TRUMP TOO SMALL. Maybe I will write about TRUMP TOO SMALL and hold a conference on TRUMP TOO SMALL. #TRUMPTOOSMALL https://t.co/hNxThetqgd
— Christine Haight Farley (@Prof_Farley) June 5, 2023
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