TRADEMARK: The one Trump case that has Biden on the same side

TRADEMARK: The one Trump case that has Biden on the same side

Of all the Donald Trump legal issues, this one isn’t costing him a thing, and remarkably, the Biden administration is on Trump’s side in this one.

The issue at hand is whether a private individual can trademark the unauthorized use of a politician’s name.

The key word is trademark and that’s why the case has gone all the way to the Supreme Court.

You are entirely free to go to a t-shirt shop and have them slap “Trump too Small” on a t-shirt and wear it around Mar-a-Lago.

But the issue before the Supreme Court is whether you can trademark the phrase on a shirt.

California attorney Steve Elster came up with the idea, inspired by a debate in which Marco Rubio commented on Trump’s tiny hands/stubby finger thing, as a reference to heavier mobsters with pinky rings (or something).

It was meant as a comment about Trump being cheap, always cheating someone out of their money. This got to the debate in which Rubio commented on hand size and, in what is surely a first, a presidential debate devolved to one of the candidates assuring us he is has a huge dick.

Wait, no – he assured us there were “no problems down there” with his, never mind. You know.

Elster says that yes, he’s referencing that moment, but it is also a comment on Trump being “too small” for the job of President of the United States.

These two issues are obviously not mutually exclusive.

The issue before the Supreme Court is actually a truly significant case. It is a clash as to whether the U.S. Constitution’s First Amendment free speech protections for criticism of public figures outweigh the agency’s concerns over Trump’s property rights, as the lower court found.

Biden’s administration, through the trademark registry, is arguing that Trump has a right to prevent a trademark using his name (there’s that keyword again — trademark) or whether the public’s free speech should allow the trademark.

According to a Reuter’s report:

“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.”

Both sides have strong arguments.

Elster’s position is that a ruling favoring the government (No trademark) would give politicians far too much control over speech about them.

The U.S. Patent and Trademark Agency argues 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.

Reasonable minds can disagree. (Except on the issue that Trump is too small in whatever context you prefer to use. On that, there is one position, which — ironically — is what Stormy said.)

Now, we’re descending to the level of the debate.

Ascending now, Jonathan Moskin, a partner at law firm Foley & Lardner who wrote a brief supporting the agency on behalf of the International Trademark Association, stated to Reuters, reasoning:

“To give Elster a (trademark) registration, I don’t think it really enhances in any way his right to speak. He can put his slogan anywhere he wants – whether or not he gets a registration.”

True, but what happens if the shirts really took off? He might find it sold on Amazon or Macy’s under another manufacturer’s name.

But Reuters also cites a trademark and patent law professor from Golden Gate Law School who opined:

“Golden Gate University School of Law professor Samuel Ernst, who wrote a court brief supporting Elster, said a win for the government would create a ‘heckler’s veto’ for politicians who want to prevent trademarks criticizing them. Ernst also said the law at issue does not further the overarching trademark law goal of preventing marketplace confusion.”

“Nobody would be confused into believing that Donald Trump is selling T-shirts accusing him of being too small,” Ernst said.

True. But the “heckler’s veto” is the best argument. If someone comes up with a truly clever five words that becomes really popular the government probably shouldn’t allow a candidate to shut it down because of the trademark.

Regardless. We had to endure a debate in which Trump held his hands up to show us… fairly small and fat fingers, to ensure that his “thing” wasn’t small  — “no problems, believe me.” Since then, Trump has been obsessed with “size” in everything.

Now the Supreme Court’s once-hallowed courtroom (diminished in stature with the ethics issues) with have to hear a case in which “Trump too Small” will be the operative issue.

Given that we didn’t have to pay to bring the suit, that makes it worth it right there. Perhaps it’d be worth ordering one of those shirts.

This column is based on original reporting by Blake Brittan of Reuters

I can be reached at and on X @JasonMiciak.

Editor’s note: This is an opinion column that solely reflects the opinions of the author.

Jason Miciak

Jason Miciak is an associate editor and opinion writer for Occupy Democrats. He's a Canadian-American who grew up in the Pacific Northwest. He is a trained attorney, but for the last five years, he's devoted his time to writing political news and analysis. He enjoys life on the Gulf Coast as a single dad to a 15-year-old daughter. Hobbies include flower pots, cooking, and doing what his daughter tells him they're doing. Sign up to get all of my posts by email right here: