Supreme Court to hear arguments in 'Trump Too Small' t-shirt case

A California lawyer's t-shirt design mocking former President Donald Trump with the phrase "Trump Too Small" is now embroiled in a trademark battle set to go before the Supreme Court of the United States (SCOTUS).

In 2018, attorney Steve Elster applied to secure the trademark for "Trump Too Small," though the US Patent and Trademark Office (USPTO) denied the application. According to Reuters, Elster won an appeal in US District Court, and the USPTO in turn filed an appeal of that decision, which now moves the case to SCOTUS.

In the case — which does not personally involve the 45th president or anyone in his circle — Elster's attorneys are arguing that their client's First Amendment rights to criticize public figures shouldn't be infringed, and that the Court siding with the USPTO would amount to the government controlling citizens' constitutionally protected speech about elected officials. For their part, the USPTO counters that the t-shirt design violates a 1946 statute barring trademarks featuring a person's name without first obtaining their consent. As an office within the US Department of Commerce, this effectively amounts to the Biden administration protecting Biden's chief rival from having his name misused for commercial purposes.

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Reuters reported that Elster's "Trump Too Small" t-shirt is a double entendre. While Elster said the phrase is a reference to "the smallness of Donald Trump's overall approach to governing," it's also meant to mock a 2016 exchange with Senator Marco Rubio (R-Florida), who at the time was challenging Trump for the Republican presidential nomination. When Trump referred to the Florida senator as "little Marco," Rubio countered that Trump's hands were small — an attack that Trump felt the need to respond to.

"Look at those hands. Are they small hands?" Trump responded. "If they're small, something else must be small. I guarantee you, there's no problem. I guarantee it."

Samuel Ernst, who is a professor for Golden Gate University School of Law, wrote a brief in support of Elster, argued that not allowing the trademark would lead to a "heckler's veto" for any politician who disagrees with public critique. He added the shirts would not prevent "marketplace confusion," which is the overarching goal of the USPTO.

"Nobody would be confused into believing that Donald Trump is selling T-shirts accusing him of being too small," Ernst told Reuters.

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