Was The ‘TRUMP TOO SMALL’ Case Really Small 




With fear for our democracy, I dissent.”

Sonia Sotomayor (Associate Justice of the Supreme Court of the United States)

Case: Vidal v Elster aka “Trump Too Small

Trademarks are one of the most common forms of Intellectual Property Rights that protect against infringement, once registered. Any sign, or any combination of signs, capable of distinguishing the products or services of one enterprise from those of other undertakings must be capable of forming a trademark.

However, not all signs or their combination are eligible for trademark protection. Coming to the complexities of drawing boundaries on the distinctiveness of trademarks and their capability of being registered as one, the case of “Trump too Small” serves as a guiding light. It not only provides clarity on what qualifies as a trademark but also demarcates it from the First Amendment of the US Constitution which stipulates that Congress shall make no laws respecting the establishment of religion or prohibiting its free practice also safeguarding the freedom of speech, the press, assembly, and the right to petition the government for redress of grievances.


In the case, Steve Elster, a California man filed for the registration of a trademark for the exclusive use of the phrase- TRUMP TOO SMALL, to use the mark on shirts, under the Trademark Act, also known as the Lanham (Trademark) Act 1946 (primary federal trademark statute in the US). Elster’s trademark application was denied by the US Patent and Trademark Office (USPTO) examiner under Sections 2(a) and 2(c) of the above-mentioned Act. Whilst, 2(a) prevents the registration of trademarks that “falsely suggest a connection with persons, living or dead”, 2(c) emphasizes written consent to be taken of the person whose name, portrait, or signature has been included in the trademark. Here, since no written consent was provided by President Donald Trump in this scenario it led to such denial of the registration of the trademark.

Elster then appealed to the United States Trademark Trial and Appeal Board arguing that provisions 2(c) and 2(a) were unlawful limits on free speech and should be subjected to severe scrutiny. Although, the Board rejected his arguments, upholding the examiner’s conclusion.

Later, Elster filed an appeal with the United States Court of Appeals for the Federal Circuit. The court determined that applying section 2(c) to Elster’s trademark did not serve a major government purpose as “the right to criticize public men is one of the prerogatives of American citizenship,” thus not serving a significant government interest. As a result, the court rejected the Board’s determination regarding Elster’s Section 2(c) arguments and favoured him in its decision.

Aggrieved by the same, on January 27, 2023, the USPTO asked the Supreme Court to consider the legality of the legislation as it applied to Elster’s trademark.

Katherine Vidal, Director of the USPTO, maintained her stand by determining that the law concerned was viewpoint neutral, unlike the one in Brunetti and Tam . She stated that under the clause’s evaluation process, consent of the individual is required if “the mark would be recognized and understood by the public as identifying the person,” regardless of the mark’s proposed application.

She also emphasized that Elster’s mark “TRUMP SMALL HANDS” plainly recalled “the name of a particular living individual.” Therefore, dismissing Elster’s trademark registration was not about the “ideas or opinions” his mark tends to express, but rather about adhering to the provisions of the act.

The decision for the same was made by the US Supreme Court on June 13, 2024.

Analysis Of The Judgment 

The nine-judge bench, in a unanimous decision, held that Sections 2(a) and 2(c) of the Lanham Act are not violative of the First Amendment of the US Constitution. The court reasoned that these requirements are required to prevent fraudulent endorsements and the use of people’s names without their permission and that these interests outweigh the free expression issues presented. According to the verdict, the court determined that these portions were fair and viewpoint-neutral limitations within the context of trademark law, in conformity with the views and standpoints provided by Vidal.

This decision not only impacted the trademark outlook but also had a substantial effect on the First Amendment of the US Constitution. It reinforced the long-standing principle that trademark rights are protected by the government and can be restricted to prevent unauthorized use of names and likeliness, further strengthening the ability of individuals to control their commercial Identity. This decision also suggests that the Court may be willing to uphold content-based restrictions on speech in certain future circumstances, particularly when they are violative of but guarded by the traditional trademark law.


This decision is quite significant in distinguishing the rights of sign from that of speech, drawing a clear boundary between the two. The court’s decision has provided valuable insights into the complex interplay between individual rights and the state’s interest in maintaining public order. The ruling underscores the need to strike a delicate balance between the fundamental freedoms enshrined in the Constitution and the government’s responsibility to ensure the safety and well-being of its citizens. While the court’s decision may not have satisfied all parties involved, it serves as a testament to the judiciary’s commitment to upholding the principles of justice and the rule of law. Ultimately, this case serves as a reminder of the ongoing need for thoughtful dialogue and nuanced consideration of the multifaceted issues at the heart of such disputes.


Authors: Mahima Gupta, Nishi Jain & Viha Mehta


Interns and Paralegals.


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