The Trademark Trial and Appeal Board (TTAB) – for the second time in the past six months – has decided that a proposed mark incorporating the name “Trump” may not be federally registered as a trademark. Relying on the Lanham Act prohibition against registration of any mark that identifies “a particular living individual” without that person’s consent,[1] the board refused to register “Trump Too Small” for use on T-shirts and other apparel.
It is probably no coincidence that the application for the Trump Too Small mark was filed in January 2018, only months following the Supreme Court’s June 2017 decision in Matal v. Tam[2] declaring that the Lanham Act prohibition against registration of marks that “may disparage” individuals or institutions[3] violates the Free Speech Clause of the First Amendment. The TTAB had refused to register the rock band name “The Slants” because it could be considered disparaging to people of Asian descent. The Tam decision also vindicated the “Redskins” mark for the Washington football team, which the TTAB had canceled in 2014 because it could offend American Indians. The Supreme Court ruled that refusing the benefits of federal trademark registration because a mark could be considered by some to be disparaging amounts to unconstitutional discrimination against speech that “expresses ideas that offend.”
The applicant for Trump Too Small, an individual named Steve Elster, argued that his mark constituted “private, political speech” criticizing President Donald Trump and, therefore, was protected by the First Amendment under Matal v. Tam. (In 2019, the Supreme Court had similarly ruled in Iancu v. Brunetti[4] that denial of registration for the mark “Fuct” on the grounds that it was “scandalous matter”[5] violated the Free Speech Clause as “viewpoint discrimination.”) Elster submitted an image of a Trump Too Small T-shirt, leaving no doubt that his intent was to editorialize against Trump.
But the board emphatically rejected this “free speech” defense. The cited Supreme Court opinions struck down Lanham Act provisions outlawing registration of marks whose content could be considered disparaging or immoral, thereby imposing “viewpoint discrimination.” The TTAB distinguished the separate statutory ban on marks comprising a living individual’s name without consent as a strictly objective test that did not turn in any way on the content or viewpoint communicated by the mark. Either it does or it does not include an identifiable...
