“Small hands” Trump heads to the Supreme Court

“Trump Too Small” was a comment by Republican Marco Rubio back in 2016, but it is now in the hands of the Supreme Court over a trademark.

The story behind the slogan

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Illustration. Image credit: BRENDAN SMIALOWSKI / AFP

In 2016, Marco Rubio, a Florida Republican, complained, “He’s always calling me Little Marco. And I’ll admit he’s taller than me. He’s like 6’2, which is why I don’t understand why his hands are the size of someone who is 5’2”.” He fired back, “And you know what they say about men with small hands? You can’t trust them.”

Trump responded

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Illustration. image credit: JOSEPH PREZIOSO / AFP

“Look at those hands, are they small hands?” the 2016 frontrunner for the GOP presidential nomination asked the viewers, and continued, “And, he referred to my hands – ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”

Trump’s hands were a thing during the 2016 elections

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In 2015, Vanity Fair’s Graydon Carter wrote, “Just to drive him a little bit crazy, I took to referring to him as a ‘short-fingered vulgarian’ in the pages of Spy magazine. That was more than a quarter of a century ago.”

They tried to be a trademark

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Image credit: Frederic Legrand – COMEO / Shutterstock.com

Attorney Steve Elster is selling T-shirts featuring the phrase. He applied to register “Trump too small” with the trademark office in 2018 but was rejected since Trump was then President, and he would need written consent from Trump.

The First Amendment

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A federal circuit court reversed the decision made by the Trademark and Trial Appeal Board, claiming that the trademark goes to “the heart of the First Amendment.” It added that the government has no “interest in restricting speech critical of government officials or public figures in the trademark context.”

Blocking Elster’s request

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The DOJ’s petition to the Supreme Court wrote, “When registration is refused because a mark ‘[c]onsists of or comprises a name…identifying a particular living individual’ without ‘his written consent,’ ‘[n]o speech is being restricted; no one is being punished.'”

Elster is not giving up

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Illustration. Image credit: Shutterstock

“It was enacted to suppress speech that Congress deemed to be distasteful,” Elster’s attorney wrote in court filings, adding, “its effect has been to do exactly that: blocking registration of all marks that criticize public figures while leaving those people free to register their own positive marks.”

DOJ doubled down

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Illustration. Image credit: Shutterstock

In a filing, the DOJ writes, “The only effect of the refusal is to deny an owner the benefits—i.e., additional mechanisms to prevent use of the same mark by competitors—that federal registration provides. Because Section 1052(c) does not restrict speech, heightened scrutiny is unwarranted.”

It looks like Trump’s bigger than his hands

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Illustration. Image credit: Frederic J. BROWN / AFP

Justice Neil Gorsuch reminded of a tradition of banning trademarks that include names of living people, adding, “Why not just look to the history here and see whether historical evidence comports with this being a First Amendment liberty or not?”

If trademark fails

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Illustration, Image credit: Depositphotos

Even without the trademark, Elster can sell shirts. Justice Sonia Sotomayor told Elster’s lawyer, Jonathan Taylor. “It doesn’t stop you from selling. It doesn’t stop you from selling anywhere as much as you want.”

From the trademark to the copyright law

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Illustration. Image credit: ALON SKUY / AFP

Trump-appointed Justice Amy Coney Barrett wondered what would happen if someone wanted to write a book titled “Trump Too Small.” She even gave an example of how the book would be about “Trump’s pettiness over the years, and just argues that he’s not a fit public official.”

The case is not about Trump’s body parts

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Illustration. Image credit: KAMIL KRZACZYNSKI / AFP

“Despite outward appearances, this case is really not about Trump or the size of his policies or (body parts),” Fara Sunderji, a lawyer, told Fox News. She added, “Will this decision restrict speech — namely political criticism in a time where the country is so divided as the 2024 candidates are starting up their engines? The trademark applicant, Mr. Elster, would have us believe that, yes, that is what is at stake.”

The big question

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Illustration. Image credit: SAUL LOEB / AFP

The lawyer wondered, “If the Court upholds the Federal Circuit’s opinion, will the USPTO be inundated with trademark applications for every political phrase containing a candidate’s name in the 2024 election? “

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