Is TRUMP TOO SMALL for the Supreme Courtroom?

by Dennis Crouch

Vidal v. Elster (2022)

Over the previous decade, numerous conventional prudential limits on trademark protection have been discovered 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 latest showdown entails Steve Elster’s try to register the mark TRUMP TOO SMALL.  The USPTO refused to register the mark based mostly upon the statutory requirement barring registration of “a reputation, portrait, or signature figuring out a specific dwelling particular person besides by his written consent.”  Lanham Act Part 2(c).  On attraction, nonetheless, the Federal Circuit dominated that that the restrict right here is content-based and that the Authorities had not supplied a compelling and even substantial authorities curiosity.

[T]he authorities doesn’t have a privateness or publicity curiosity in proscribing speech essential of presidency officers or public figures within the trademark context–at the very least absent precise malice, which isn’t alleged right here.

In a new request-for-extension filing, the US Gov’t has indicated that it’s contemplating petitioning the case to the U.S. Supreme Courtroom as a step too far.  The request doesn’t element the potential query introduced however merely that point is required.

The Solicitor Basic has not but decided whether or not to file a petition for a writ of certiorari on this case. Further time is required for additional session throughout the Division of Justice and with the Division of Commerce and the USPTO concerning the potential authorized and sensible ramifications of the court docket of appeals’ determination.

The petition is now due December 29, 2022.