Is TRUMP TOO SMALL for the Supreme Court docket?

by Dennis Crouch

Vidal v. Elster (2022)

Over the previous decade, numerous conventional prudential limits on trademark protection have been discovered to be unconstitutional limits on free speech. See, Matal v. Tam, 137 S. Ct. 1744 (2017) (disparaging marks) and Iancu v. Brunetti, 139 S. Ct. 2294 (2019) (immoral . . . or scandalous matter).  The latest showdown includes Steve Elster’s try and register the mark TRUMP TOO SMALL.  The USPTO refused to register the mark based mostly upon the statutory requirement barring registration of “a reputation, portrait, or signature figuring out a specific residing particular person besides by his written consent.”  Lanham Act Part 2(c).  On attraction, nevertheless, the Federal Circuit dominated that that the restrict right here is content-based and that the Authorities had not offered a compelling and even substantial authorities curiosity.

[T]he authorities doesn’t have a privateness or publicity curiosity in proscribing speech important of presidency officers or public figures within the trademark context–at the least absent precise malice, which isn’t alleged right here.

In a new request-for-extension filing, the US Gov’t has indicated that it’s contemplating petitioning the case to the U.S. Supreme Court docket as a step too far.  The request doesn’t element the potential query introduced however merely that point is required.

The Solicitor Common has not but decided whether or not to file a petition for a writ of certiorari on this case. Extra time is required for additional session throughout the Division of Justice and with the Division of Commerce and the USPTO relating to the potential authorized and sensible ramifications of the courtroom of appeals’ resolution.

The petition is now due December 29, 2022.