March 27, 2023


Learn Business From Experience

Is TRUMP TOO SMALL for the Supreme Courtroom?

2 min read

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 newest 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 selected residing particular person besides by his written consent.”  Lanham Act Part 2(c).  On enchantment, nevertheless, the Federal Circuit dominated that that the restrict right here is content-based and that the Authorities had not offered 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 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 offered however merely that point is required.

The Solicitor Normal 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 relating to the potential authorized and sensible ramifications of the courtroom of appeals’ choice.

The petition is now due December 29, 2022.

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