Vidal v. Elster

Steve Elster applied to register a trademark saying “TRUMP TOO SMALL.” The U.S. Patent and Trademark Office rejected his application under 15 U.S.C. § 1502(c) because Elster did not receive permission from former president Trump to use his name in a trademark. After Elster appealed, the U.S. Court of Appeals for the Federal Circuit struck down the permission requirement as applied to public figures and politicians because it was an unjustified content-based restriction on speech. The government petitioned for certiorari, and the Supreme Court agreed to review the case.

FIRE, joined by the Manhattan Institute, filed an amicus urging the Supreme Court of the United States to affirm the Federal Circuit’s decision. The law might appear viewpoint neutral, but it is reasonable to assume that people will give permission to use their name if the trademark is flattering but deny permission if the mark is critical. Indeed, that’s what we see in practice, as marks positive about the last three presidents have been registered, but numerous critical or satirical marks have been denied. Although the Federal Circuit did not base its holding on viewpoint discrimination, FIRE and the Manhattan Institute suggest the Supreme Court affirm on much simpler grounds: Giving anyone a veto on the views expressed about them is unconstitutional viewpoint discrimination.