## Facts

- Steve Elster applied to register the trademark “TRUMP TOO SMALL” for use on shirts and other apparel as political commentary about Donald J. Trump.
- A USPTO examining attorney refused registration under the Lanham Act’s “names clause,” 15 U.S.C. § 1052(c), which bars registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.”
- The examiner concluded that “TRUMP” would be perceived as identifying Donald Trump, a living individual, and Elster did not have Trump’s written consent.
- The Trademark Trial and Appeal Board affirmed the refusal and rejected Elster’s First Amendment challenge.
- The U.S. Court of Appeals for the Federal Circuit reversed, holding that applying § 1052(c) to this mark violated the First Amendment.
- The Supreme Court granted certiorari to review whether denying registration under § 1052(c) in this setting violates the Free Speech Clause.

## Issues

1. Whether the Lanham Act’s names clause, 15 U.S.C. § 1052(c), violates the Free Speech Clause of the First Amendment when applied to deny registration of a mark that uses a living person’s name without consent, including when the mark conveys political commentary about a public official or public figure.
2. What First Amendment framework governs a viewpoint-neutral but content-based condition on access to the federal trademark registration system.

## Decision

- The Supreme Court reversed the Federal Circuit and upheld the USPTO’s refusal to register “TRUMP TOO SMALL” under § 1052(c).
- The Court agreed the names clause is content-based because it turns on whether a mark contains a living person’s identifying name, portrait, or signature, but it is viewpoint neutral because it applies regardless of whether the mark conveys praise, criticism, or something else.
- Justice Thomas announced the judgment and, in the principal opinion, treated viewpoint-neutral, content-based limits in trademark registration as consistent with the First Amendment when supported by the history and traditional operation of trademark law—particularly the long tradition of limiting exclusive rights in personal names.
- The Court distinguished § 1052(c) from the viewpoint-discriminatory registration bars invalidated in *Matal v. Tam* (disparagement clause) and *Iancu v. Brunetti* (“immoral or scandalous” clause).
- The Court emphasized that denial of federal registration does not bar Elster from using the phrase in commerce or speaking; it denies access to the additional legal benefits and remedies tied to federal registration.
- The judgment was unanimous in result (9–0), but the Justices disagreed on method: several concurrences agreed § 1052(c) is constitutional while rejecting or limiting reliance on a history-based test and favoring a more conventional analysis of a government-administered registration program.

## Legal Principles

- The Lanham Act’s names clause, 15 U.S.C. § 1052(c), is constitutional under the First Amendment and permits the USPTO to refuse registration of a mark that identifies a particular living individual by name (or portrait or signature) without that individual’s written consent.
- A trademark-registration condition may be content-based yet permissible when it is viewpoint neutral and fits with the traditional limits of trademark law, including the special treatment of personal names.
- Viewpoint-discriminatory trademark-registration bars raise serious First Amendment problems (as in *Tam* and *Brunetti*); viewpoint-neutral eligibility rules are analyzed differently.
- Federal trademark registration is a government-run system that confers statutory advantages and remedies; refusal to register generally withholds those benefits rather than banning use of the expression.
- Even when a proposed mark conveys political speech about a public figure, § 1052(c) may be applied without violating the Free Speech Clause so long as the rule operates without regard to viewpoint.

## Conclusion

In *Vidal v. Elster*, the Supreme Court held that the USPTO may deny federal registration of “TRUMP TOO SMALL” under § 1052(c) because the names clause is a viewpoint-neutral limit that bars registering marks identifying a living person without written consent, and the First Amendment does not require the government to provide the benefits of federal trademark registration for such a mark even though the applicant remains free to use the phrase in commerce and public debate.


Vidal v. Elster, 144 S. Ct. 1507, 602 U.S. 286 (2024)