Supreme Court signals it won't allow 'Trump too small' trademark

WASHINGTON — No case is too small for the Supreme Court.

On Wednesday, the high court heard arguments in a dispute over whether a California lawyer can trademark the phrase “Trump too small,” a reference to a bawdy joke that Sen. Marco Rubio, R-Fla., made about a sensitive part of Donald Trump’s anatomy.

Based on the oral arguments, the court looks likely to affirm a U.S. Patent and Trademark Office decision that rejected the application.

Attorney Steve Elster is selling T-shirts featuring the phrase, which stems from an exchange during a 2016 presidential debate in which Rubio made a crude comment about the size of Trump's hands.

"And you know what they say about guys with small hands," Rubio said, leaving no doubt which part of the body he was referring to.

Elster, an employment lawyer and progressive activist, applied to register "Trump too small" with the trademark office in 2018. The slogan appears on the front of the T-shirt, with "Trump's package is too small" on the back. The shirts are currently for sale online at $29.99, a $10 discount on the normal price of $39.99.

His application was rejected because people would associate the word "Trump" with the then-president. The trademark office concluded that Trump's written consent would be needed, as required under a 1946 law called the Lanham Act.

Elster argued that his free speech rights would be violated if he could not register a trademark that criticizes a public figure, but Supreme Court justices on Wednesday appeared skeptical of that claim.

Justice Neil Gorsuch noted that there is a long tradition of prohibitions on trademarks that reference living people, suggesting that there was no historical sense that there was a free speech issue.

"Why not just look to the history here and see whether historical evidence comports with this being a First Amendment liberty or not?" he said.

Even if Elster cannot trademark the phrase, there is nothing to stop him selling the T-shirts, Justice Sonia Sotomayor pointed out, questioning whether there was any restriction on free speech in the first place.

"It doesn’t stop you from selling. It doesn’t stop you from selling anywhere as much as you want," she told Elster's lawyer, Jonathan Taylor.

Justice Elena Kagan, meanwhile, pointed out that the Supreme Court in similar situations has allowed the government to reject similar speech-based requests as long as it does not give preference to certain viewpoints.

“I think we have always allowed that,” she said.

In another aside notable for its characterization of Trump himself, Justice Amy Coney Barrett, a Trump appointee, asked a hypothetical question about how the trademark case could affect copyright law, using the example of someone who wants to write a book called ‘Trump Too Small."

The book, she said, would be about “Trump’s pettiness over the years, and just argues that he’s not a fit public official.”

The U.S. Court of Appeals for the Federal Circuit ruled for Elster, saying his free speech rights under the Constitution's First Amendment were violated.

The Biden administration, representing the trademark office, then appealed to the high court.

The case is the latest of several the Supreme Court has taken up recently concerning free speech rights in the trademark context.

In 2017, the court struck down a prohibition on trademarks that feature disparaging language, handing a win to an Asian American rock band called The Slants.

The court two years later threw out a ban on trademarks based on immoral or scandalous words, ruling in favor of the clothing brand FUCT.

This article was originally published on NBCNews.com