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Justices take up “Trump Too Small” trademark case

It has been more seven years since Sen. Marco Rubio, a Republican from Florida, claimed in a presidential debate that then-candidate Donald Trump had “small hands.” On Monday the justices agreed to weigh in on a trademark dispute that arises indirectly from that comment – specifically, from Steve Elster’s efforts to register the phrase “Trump Too Small” so that he could print and sell t-shirts bearing that phrase. The case, Vidal v. Elster, was the only grant on the list of orders released from the justices’ private conference last week. 

Elster contended that the phrase was intended to “convey[] that some features of President Trump and his policies are diminutive.” But the Patent and Trademark Office rejected Elster’s application. It relied on a federal trademark law, Section 2(c) of the Lanham Act, that prohibits the registration of a trademark that uses the name of another living person without that individual’s permission.

The PTO’s Trademark Trial and Appeal Board upheld the PTO’s decision, but the U.S. Court of Appeals for the Federal Circuit reversed. It ruled that relying on Section 2(c) to prohibit Elster from registering the “Trump Too Small” phrase would violate the First Amendment. When it comes to trademarks, the court of appeals explained, the government does not have an interest “in restricting speech critical of government officials or public figures.”

The Biden administration came to the Supreme Court in January, asking the justices to review the Federal Circuit’s decision. U.S. Solicitor General Elizabeth Prelogar argued both that the lower court’s ruling is wrong and that the Supreme Court normally grants review when a federal appeals court strikes down a federal statute.

The case will likely be argued in the fall, with a decision to follow sometime next year.

The justices denied review in the case of Heather Leavell-Keaton, who was sentenced to death for her role in helping her boyfriend kill his two young children. Leavell-Keaton was originally sentenced in 2015, but the Alabama Court of Criminal Appeals – the state’s highest court for criminal cases – lifted that sentence in 2020 because she had not been given an opportunity to make a statement on her own behalf at her sentencing hearing. At her new sentencing hearing, the trial judge declined to consider any of the evidence that Leavell-Keaton offered about her good behavior during her five years in prison, and he sentenced her to death again.

After the Alabama Court of Criminal Appeals upheld her new sentence, Leavell-Keaton came to the Supreme Court, asking the justices to review her case. She argued that under the justices’ 1986 ruling in Skipper v. South Carolina, she had a constitutional right to present evidence of her good behavior in prison. But after considering Leavell-Keaton’s case at four conferences and requesting the state-court record (a sign that at least one justice was looking closely at the case), the court turned down her request without comment.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices take up “Trump Too Small” trademark case, SCOTUSblog (Jun. 5, 2023, 11:22 AM),