Vidal v. Elster

Steve Elster sought to register the phrase "Trump too small" as a trademark for shirts, referencing a remark from a 2016 Republican primary debate. The U.S. Patent and Trademark Office refused registration under Section 2(c) of the Lanham Act, which bars trademarks identifying a living individual without written consent. Elster argued the provision violated his First Amendment rights. The Federal Circuit sided with Elster, ruling the name clause unconstitutional as viewpoint discrimination. The Supreme Court reversed, holding that although the clause is content-based, it is consistent with a longstanding tradition of restricting commercial use of another person's name and does not offend the First Amendment.

The Supreme Court unanimously reversed the Federal Circuit, holding that the name clause is constitutional and does not violate the First Amendment. Justice Clarence Thomas wrote the majority opinion, with several justices filing concurrences.

Whether Section 2(c) of the Lanham Act's prohibition on registering a trademark that identifies a living individual without consent violates the First Amendment's Free Speech Clause, particularly when the mark criticizes a public figure.

The decision clarifies that content-based trademark restrictions can survive First Amendment scrutiny if rooted in historical tradition. It preserves the ability of public figures to block commercial use of their names without consent, even for political commentary, and limits the expansion of free speech claims in trademark registration. The ruling may influence future challenges to other Lanham Act provisions and the intersection of intellectual property and speech.