On November 1, I became member of the Bar of the Supreme Court of the United States. As part of the ceremony of admission we had the opportunity to participate in the oral arguments for the case Vidal v. Elster, a pending United States Supreme Court case dealing with 15 U.S.C. § 1052, a provision of the Lanham Act regarding trademarks using the name of living individuals without their consent.
Steve Elster applied to seek registration of the mark TRUMP TOO SMALL for clothing. The Examining Attorney refused registration on the ground that it comprises matter that may falsely suggest a connection with President Donald J. Trump, and under Section 2(c), 15 U.S.C. § 1052(c). Section 2(c) of the Trademark Act precludes, in relevant part, registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.”
Applicant argued that “the statutory refusals to register applied in this case are unconstitutional because they violate his right to free speech under the First Amendment. Applicant alleges that Section 2(a)’s false association provision and Section 2(c)’s particular living individual provision constitute content-based restrictions on private speech, subject to strict scrutiny.”
The government argued that “When registration is refused because a mark “[c]on- sists of or comprises a name * * * identifying a particular living individual” without “his written consent,” 15 U.S.C. 1052(c), “[n]o speech is being restricted; no one is being punished”.
In the hour and a half hearing the Justices questioning showed that were inclined to uphold the restriction because the USPTO not granting trademark protection to Elster, according to Justice Sotomayor “doesn’t stop you from selling anywhere as much as you want”.
If Applicant wins, I wonder whether President Trump will oppose this trademark application when published.
A decision is expected at the end of this term in June 2024, we will keep you updated on the outcome of this important case.
I have helped countless businesses protect their trademarks in the United States and foreign jurisdictions. I’d like to help you too!
