When he was a candidate in the primaries for the 2016 elections, Donald Trump called his rival, Senator Marco Rubio, “little Marco.” He, tired of this contempt, stood up at a rally: “You know what they say about guys with small hands. You can’t trust them!” Steve Elster, a progressive activist, attempted to register the “Trump too small” trademark in 2018. [”Trump demasiado pequeñas” o, con doble sentido, “demasiado pequeña”], but the patent office rejected it, since the law requires consent from the named person. Elster appealed and a court ruled in his favor last year, alleging that his freedom of expression was being violated, since Trump is a public figure. The patent office appealed and the Supreme Court ruled in favor this Thursday in the case Vidal v. Elster.
In that primary campaign, Rubio launched other physical attacks against Trump. He pointed to his tan, saying that “he doesn’t sweat because his pores are clogged by the tanning spray.” “Donald Trump is not going to make America great, he is going to make America orange,” he added. Trump later referred to Rubio’s phrase in a primary debate. “Look at these hands. Are they small hands? He referred to my hands…if they are small, something else must be small. I guarantee you that there is no problem. I guarantee it,” said the later winner of the 2016 primaries and presidential elections.
Curiously, Marco Rubio is now in the running to appear on the ballot for vice presidential candidate alongside Trump. The former president can try to appeal to the Latino vote with him, but his candidacy also faces some drawbacks. Rubio would have to sacrifice his position as senator and would also have to change his residence, since the Constitution requires that candidates for president and vice president be domiciled in different states.
Freedom of expression
The oral hearing of the “Trump too small” trademark case was held on November 1. In its ruling this Thursday, the Supreme Court considers that the clause that protects names does not violate freedom of expression. It is one thing to use a phrase against someone and another to be able to register that denigrating phrase with another person’s name as a trademark and guarantee the rights. Elster can continue to sell T-shirts and other products with that phrase under his freedom of expression, but he cannot trademark it for exclusivity. The Department of Justice defended the same thesis that has prevailed in the Supreme Court.
“The restrictions on registered trademarks have been based on the notion that a person is the owner of his own name and that he cannot be excluded from the use of that name by another’s trademark,” states the ruling, which has been speaker Judge Clarence Thomas. The meaning of the ruling has been unanimous, although the majority of the judges distance themselves from part of the legal foundations.
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“The restriction on brand names also reflects the historical logic of trademark law to identify the origin of products and thus ensure that consumers know the origin of a product and can evaluate it based on the reputation and recognition of the manufacturer. Furthermore, the clause respects the connection established between a trademark and its protection of the reputation of the trademark owner,” the resolution says. “A trademark protects the reputation of the trademark owner, and the connection is even stronger when the trademark contains a person’s name,” he adds.
Applying these principles, the court concludes that a party does not have the right, under freedom of expression, to take advantage of the value that another entity or person has in its name. “The names clause reflects the common law tradition by prohibiting a person from obtaining a trademark in the name of another living person without that person’s consent, thereby protecting the reputation and recognition of the other person,” the ruling states. That doctrine, he points out, is sufficient in this specific case, although the Supreme Court tries not to establish a global framework for all trademark restrictions based on content.
The judicial course of the Supreme Court is very marked by the decisions about Trump. This ruling only affected him tangentially. The judges also decided on the use of social networks by public officials, a case with echoes of the former president’s mandate, but that did not directly concern him. For now, the most important decision about the former president was the one that rejected his disqualification for insurrection. There are two others that affect Trump’s judicial future. One, about the scope of his presidential immunity in criminal matters. The other, about the nature of a crime of which he is accused, that of obstruction of an official proceeding. Both rulings are expected this month.
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