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The Intellectual Property StrategistFeaturesIntellectual PropertyLitigationTrademarksUnited States Supreme Court

Supreme Court Upholds Names Clause in Trademark Law, Emphasizing Historical and Traditional Foundations

By Howard J. Shire and Justin Tilghman
August 01, 2024

In a landmark decision, written by Justice Clarence Thomas, the U.S. Supreme Court has unanimously upheld the constitutionality of the Lanham Act's provision that prohibits the registration of trademarks consisting of or comprising the name of a particular living individual without the individual's written consent. 15 U.S.C. §1052(c) (authorizing refusal of a trademark application if it "[c]onsists of or comprises a name. portrait, or signature identifying a particular living individual except by his written consent …."

The case, Vidal v. Elster, 602 U.S. —- (2024), centered on Steve Elster's attempt to register the trademark "Trump too small," accompanied by an illustration of a hand gesture, for use on shirts and hats. Elster's application was initially refused by the Examiner and then by the Trademark Trial and Appeal Board (TTAB), which cited this section of the Lanham Act. The Federal Circuit reversed this decision, prompting the Supreme Court to grant certiorari.

Elster claimed that his use of Donald Trump's name in this context was protected by the First Amendment, because it was based on Trump's famous comment about the size of his hands during a 2016 debate among Republican presidential candidates and was intended as a criticism as to how small (meaning how poor) Trump had been as President. Thus, Elster argued, this statute was unconstitutional as applied to his trademark application.

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