With the USA in election fever, this has flooded into the trademark world too. An interesting application has caught the world’s attention and made its way all the way up to the Supreme Court for consideration.
The Controversial Trademark Application
The initial application was filed by Steve Elser, a lawyer, who sought to protect the phrase “Trump Too Small” for clothing. The application was inspired by a comment made by Senator Marco Rubio, who, during the 2016 presidential race, made a remark about then-candidate Donald Trump’s hand size.
Initial Refusal and Legal Challenges
The application was initially refused by the US Patent and Trademark Office on the basis that it was contrary to the name provisions within US trademark law. These provisions require written consent to file a trademark including the name of a living person from the person in question.
Seeking to challenge this decision, Elser argued that the refusal of the application was an infringement of his First Amendment right to free speech.
Appeal to the Federal Circuit Court
After a further refusal from the US Office, the matter was appealed to the Federal Circuit Court. This Court found in favour of Elser, arguing that as a content-based and viewpoint-neutral restriction on speech, the names clause did not serve a significant government interest and therefore failed to meet the requirements of scrutiny.
Supreme Court Review of the Trademark Application
The matter was appealed again to the Supreme Court to make a clear decision on the issue. The Supreme Court focused on the differences between content-based and viewpoint-neutral regulations of speech. The Court determined that the name requirement under US law does not violate the First Amendment in relation to freedom of speech. The Court confirmed that the US Patent and Trademark Office is within its rights to monitor and restrict the protection of names within trademarks.
Implications for Trademark Law and Free Speech
This case highlights the ongoing tension between trademark law and free speech. The Supreme Court’s decision reinforces the authority of the US Patent and Trademark Office to regulate trademarks that include the names of living individuals without their consent, even when such regulations intersect with free speech concerns.
If you wish to discuss how to protect your brand in the USA, get in touch with our team today. At Lawdit Solicitors, we can guide you through the complexities of trademark law and ensure your brand is fully protected.
