{"id":5532,"date":"2025-02-14T17:14:37","date_gmt":"2025-02-14T17:14:37","guid":{"rendered":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/?p=5532"},"modified":"2025-02-14T17:14:37","modified_gmt":"2025-02-14T17:14:37","slug":"bigger-than-trumps-small-hands-scotus-upholds-content-based-regulation-in-trademark-law-in-fractured-fashion","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/bigger-than-trumps-small-hands-scotus-upholds-content-based-regulation-in-trademark-law-in-fractured-fashion\/","title":{"rendered":"Bigger Than Trump\u2019s Small Hands: SCOTUS Upholds Content-Based Regulation in Trademark Law in Fractured Fashion"},"content":{"rendered":"\n

By: Joseph Marcucci<\/a>, Vol. 23 Staff Writer<\/p>\n\n\n\n

A. The Court Upholds the Names Clause<\/strong><\/p>\n\n\n\n

The Supreme Court in Vidal v. Elster <\/em>upheld the United States Patent and Trademark Office\u2019s refusal to register a federal trademark for the phrase \u201cTrump Too Small.\u201d The court held that the USPTO\u2019s refusal was warranted under the Lanham Act, specifically, under the Act\u2019s names clause, which prohibits the registration of trademarks using the name, likeness, and identity of the individual without their written consent. Recognizing the law as a content-based restriction on speech, the court nonetheless upheld the clause, focusing on the long history and tradition of trademark law to support its constitutionality despite its content-based nature.<\/p>\n\n\n\n

B. Emphasis on History and Tradition<\/strong><\/p>\n\n\n\n

In 2016, Steve Elster applied to register the trademark \u201cTrump Too Small\u201d following its usage in the 2016 primary debates. The reviewing attorney at the USPTO rejected the registration based on the Lanham Act\u2019s names clause because Trump had not consented to the trademark containing his name. Elster argues that this clause infringed upon his right to free speech as protected by the First Amendment.<\/p>\n\n\n\n

The Supreme Court\u2019s opinion, written by Justice Thomas, applied First Amendment review to the trademark regulation in the absence of governing case law. The court recognized the content-based nature of the regulation\u2013whether the proposed trademark contains a person\u2019s name\u2013since it \u201capplie[d] to particular speech because of the topic discussed or the idea or message expressed.\u201d Moreover, the court distinguished Vidal from related trademark cases of Matal v. Tam <\/em>and Iancu v. Brunetti <\/em>because the names clause is not a viewpoint-based regulation that singles out any trademarks \u201cbased on the specific motivating ideology or the opinion or perspective of the speaker.\u201d The names clause is clearly interpreted to apply to all names, irrespective of any ideology, opinion, or perspective of the speaker.<\/p>\n\n\n\n

In deciding whether heightened scrutiny extended to a content-based, but viewpoint-neutral trademark, the court emphasized the history and nature of trademark law to support a rejection of heightened scrutiny. Despite not being well established at the time of the founding, there is a longstanding history of trademark law, dating back to 1870, where courts have long continued to assess trademarks based on their content. This history properly demonstrates that restrictions on trademarks have always hinged on their content and have existed \u201charmoniously alongside the First Amendment from the beginning.\u201d Moreover, restrictions on the practice of trademarking names have historically been grounded in the belief that a person has an ownership interest over their own name. The names clause legitimately recognizes this interest and is in line with the common law history of protecting the use of someone\u2019s own name, image, and likeness.<\/p>\n\n\n\n

Taken together, the court concluded that the USPTO\u2019s action in denying the application was constitutional, affirmatively ruling that the trademark law that prohibited using an individual\u2019s name without their consent is a constitutional, content-based restriction, on the First Amendment.<\/p>\n\n\n\n

Several concurring opinions made separate compelling points. Justice Kavanaugh, joined by the Chief Justice, emphasized that there may be grounds other than \u201chistorical<\/p>\n\n\n\n

pedigree\u201d to uphold a viewpoint-neutral, content-based restriction. Justice Barrett aligned herself with Justice Kagan, Justice Sotomayor, and Justice Jackson, and preferred a less originalist approach. Justice Barrett criticized the majority for their reliance on an incomplete retelling of history and tradition, which she felt was insufficient to establish a necessary \u201chistorical analog.\u201d Moreover, she went even further, stating that even if the \u201ccourt\u2019s evidence were rock solid,\u201d she would not adopt this approach because \u201ctradition is not an end in itself.\u201d Instead, Justice Barrett opted for for a reasonableness standard. Arguing that such an inquiry would better reflect the \u201crelationship between content-based trademark registration restrictions and free speech.\u201d<\/p>\n\n\n\n

C. Implications<\/strong><\/p>\n\n\n\n

Some have focused on the narrowness of the decision. Arguing that the key takeaway from this case is merely that persons seeking a trademark containing the name of a living individual must secure consent. While this is an accurate summation of the facts of the case, it ignores an important fracturing in the subtext of this 9-0 opinion. Others have emphasized that this case shows a very real divide between the majority and concurrences and that such disagreement highlights fracturing in the jurisprudential makeup of the court. The differing opinions identify a clear ideological split among the Justices on how to conduct constitutional analysis. The divide between the majority\u2019s emphasis on history and tradition versus the concurrence\u2019s call for a reasonableness standard shines a light into a \u201cdeveloping split\u201d amongst the justices of the court on how much weight should be given to originalist principles of interpretation.<\/p>\n\n\n\n

In conclusion, a narrow ruling on the constitutionality of content-based restrictions in trademark law, overlays a deeper issue. The divide on the proper weight to give originalist principles as a core tenet of constitutional jurisprudence.Undoubtedly, future decisions must further elucidate the Court\u2019s commitment to originalism. Does this decision signal a less originalist majority than it is perceived to be? Or is it just about the size of Trump\u2019s hands?<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

By: Joseph Marcucci, Vol. 23 Staff Writer A. The Court Upholds the Names Clause The Supreme Court in Vidal v. Elster upheld the United States Patent and Trademark Office\u2019s refusal to register a federal trademark for the phrase \u201cTrump Too Small.\u201d The court held that the USPTO\u2019s refusal was warranted under the Lanham Act, specifically, under the …<\/a><\/p>\n","protected":false},"author":10,"featured_media":5529,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[396,398],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/5532"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=5532"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/5532\/revisions"}],"predecessor-version":[{"id":5541,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/5532\/revisions\/5541"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/5529"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=5532"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=5532"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=5532"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}