On June 5, 2023, the United States Supreme Court granted the United States Patent and Trademark Office's ("USPTO") petition for writ of certiorari to determine whether Trademark Act Section 2(c), 15 U.S.C. '1052(c), which bars registration of a mark that "[c]onsists of or comprises a name... identifying a particular living individual except by his written consent[,]" violates the First Amendment of the United States Constitution when the mark in question criticizes public figures, including government officials.
The Court of Appeals for the Federal Circuit ("CAFC") called into question the constitutionality of Trademark Act Section 2(c) when it reversed the USPTO's Trademark Trial and Appeal Board's ("TTAB") decision affirming the refusal to register the mark TRUMP TOO SMALL. Finding that the USPTO lacked a substantial government interest in restricting petitioner Steve Elster's "trademarked speech," the CAFC held Section 2(c) unconstitutional as applied to the facts of this case.
Seeking to call to mind a peculiar spat between then-candidate Donald J. Trump and Florida Senator Marco A. Rubio during a March 2016 Republican Party presidential debate, Elster applied to register the mark TRUMP TOO SMALL for use in connection with a variety of shirts. The USPTO examining attorney refused registration of the mark under Trademark Act Sections 2(c) and 2(a). As noted above, Trademark Act Section 2(c) prohibits registration of marks...
