Hilarious “Trump Too Small” Case Comes to Sad End at Supreme Court

Justice too delayed is justice too denied: The Supreme Court on Thursday tragically rejected a First Amendment complaint against the Patent and Trademark Office for rejecting a trademark of the phrase “Trump too small.”

The fateful phrase first came to fore following a calculated zinger from Marco Rubio during a 2016 Republican debate. Once upon a time, the debates were largely viewed as absurd chaos spirals from noncontenders for office, an opportunity for anyone with a dream and a little graphic design knowledge to craft some chintzy merch that gets flooded in the replies of viral tweets by spambots for years to come.

“And you know what they say about guys with small hands,” Rubio said with a grin to a chuckling crowd a lifetime ago. “You can’t trust ’em!”

Eight years later, the Supreme Court dealt a blow to those aspiring to turn zesty one-liners about Trump into trademarked merch. Steve Elster, an employment lawyer and progressive activist, crafted the shirt and applied to register “Trump too small” in 2018. The patent office rejected the patent based on the Lanham Act, which denies patents containing the names of living people without their written consent, on the basis that people would reasonably associate the trademark with the person.

A federal circuit court ruled that the Lanham Act doesn’t extend to content criticizing a government official or public figure. That ruling was kicked up to the Supreme Court by the Biden administration on behalf of the U.S. Patent Office.

Most Supreme Court justices concurred on the decision to reject Esler’s case, led by Clarence Thomas. Thomas concluded that there was a “tradition” of rejecting trademarks that include a person’s name, writing, “We see no reason to disturb this long standing tradition, which supports the restriction of the use of another’s name in a trademark.”

During oral arguments, Justice Sonia Sotomayor suggested upholding the rejection, noting, “The question is: Is this an infringement on speech? And the answer is no. He can sell as many shirts with this saying and the government’s not telling him he can’t use the phrase, he can’t sell it anywhere he wants. There’s no limitation on him selling it. So there’s no traditional infringement.”

As noted by Sotomayor, Elster’s merch has had no issues being sold, except perhaps for lack of interest. “Trump too small” is still available for purchase, marked down from $39.99 to $24.99.