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A man wants to trademark 'Trump too small.' The case has made it to the Supreme Court

MARY LOUISE KELLY, HOST:

Donald Trump finally got to the Supreme Court today - indirectly. He was not a plaintiff or a defendant or a target, but his name and image were the issue, as NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Today's case dates back to a presidential primary debate in 2016 and Senator Marco Rubio's mocking of then-candidate Trump as having small hands.

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD TRUMP: He hit my hand. Look at those hands. Are they small hands?

(CHEERING)

TRUMP: And he referred to my hands - if they're small, something else must be small. I guarantee you there's no problem, I guarantee you.

TOTENBERG: Two years later, part-time Democratic activist Steve Elster applied to trademark the phrase Trump too small for use on T-shirts. The Patent and Trademark Office rejected the proposed mark on grounds that it falsely suggested a connection with a living person without his written permission. The trademark office said that Elster is free to market his T-shirts without a trademark that could force others to pay him a fee for use of the phrase. Elster appealed, and a federal appellate court ruled that the provision unconstitutionally limited his free speech rights to political commentary. That argument had few, if any, takers at the Supreme Court today. Justice Sotomayor.

(SOUNDBITE OF ARCHIVED RECORDING)

SONIA SOTOMAYOR: The question is, is this an infringement on speech? And the answer is no. He can sell as many shirts with this saying. There's no limitation on him selling it.

TOTENBERG: Justice Thomas made a similar point in questioning Elster's lawyer.

(SOUNDBITE OF ARCHIVED RECORDING)

CLARENCE THOMAS: Mr. Taylor, can your client make the shirts or mugs or whatever he wants to make now without registration?

JONATHAN TAYLOR: He can, Justice Thomas.

THOMAS: So what speech precisely is being burdened?

TAYLOR: The burden on speech is that my client is being denied important legal rights and benefits that are generally available to all trademark holders who pay the registration fee solely because his mark expresses a message about a public figure.

TOTENBERG: That prompted this observation from Justice Kagan.

(SOUNDBITE OF ARCHIVED RECORDING)

ELENA KAGAN: We've said as long as it's not viewpoint-based, government can give the benefit to some and not the benefit to others.

TOTENBERG: Justice Gorsuch chimed in...

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NEIL GORSUCH: There have always been content-based restrictions of some kind.

TOTENBERG: ...And Justice Kavanaugh...

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BRETT KAVANAUGH: Congress thinks it's appropriate to put a restriction on people profiting off commercially appropriating someone else's name.

TOTENBERG: ...And Justice Jackson.

(SOUNDBITE OF ARCHIVED RECORDING)

KETANJI BROWN JACKSON: Trademark is not about the First Amendment. Trademark is about source identifying and preventing consumer confusion.

TOTENBERG: And finally, there was this from Chief Justice Roberts.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: What do you do about the government's argument that you're the one who is undermining First Amendment values? Because the whole point of the trademark, of course, is to prevent other people from doing the same thing. So if you win slogan Trump too small, other people can't use it, right?

TOTENBERG: Lawyer Jonathan Taylor said if that really is a problem, Congress could fix it, but he didn't say how. Bottom line today? Yes, Virginia, there are some things the Supreme Court justices apparently do agree on.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF MAREN MORRIS SONG, "GIRL") Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.