Is TRUMP TOO SMALL for the Supreme Court?

by Dennis Crouch

Vidal v. Elster (2022)

Over the past decade, a number of traditional prudential limits on trademark coverage have been found to be unconstitutional limits on free speech. See, Matal v. Tam, 137 S. Ct. 1744 (2017) (disparaging marks) and Iancu v. Brunetti, 139 S. Ct. 2294 (2019) (immoral . . . or scandalous matter).  The most recent showdown involves Steve Elster’s attempt to register the mark TRUMP TOO SMALL.  The USPTO refused to register the mark based upon the statutory requirement barring registration of “a name, portrait, or signature identifying a particular living individual except by his written consent.”  Lanham Act Section 2(c).  On appeal, however, the Federal Circuit ruled that that the limit here is content-based and that the Government had not provided a compelling or even substantial government interest.

[T]he government does not have a privacy or publicity interest in restricting speech critical of government officials or public figures in the trademark context–at least absent actual malice, which is not alleged here.

In a new request-for-extension filing, the US Gov’t has indicated that it is considering petitioning the case to the U.S. Supreme Court as a step too far.  The request does not detail the potential question presented but simply that time is needed.

The Solicitor General has not yet determined whether to file a petition for a writ of certiorari in this case. Additional time is needed for further consultation within the Department of Justice and with the Department of Commerce and the USPTO regarding the potential legal and practical ramifications of the court of appeals’ decision.

The petition is now due December 29, 2022.