WASHINGTON — A crude joke that Sen. Marco Rubio, R-Fla., used in 2016 to mock what he said were presidential candidate Donald Trump's "small hands" will be the centerpiece of a Supreme Court ruling on whether a California lawyer can trademark the phrase "Trump too small."
The court agreed Monday to consider whether Steve Elster could register the trademark for the phrase — a double-entendre meant to insinuate a correspondingly small penis — amid government claims that it would require the written approval of Trump himself. The case will be argued and decided in the court's next term, which begins in October and ends in June 2024.
In addition to working as an employment lawyer, Elster is a progressive political activist and works as a teacher for child actors working in film and television.
When Elster sought to register the trademark with the U.S. Patent and Trademark Office in 2018, he was rejected on the grounds that members of the public would immediately associate the word "Trump" with the then-president. Under established law, Trump's written consent would be required, the office concluded.
The "Trump too small" phrase is a reference to a 2016 Republican presidential primary debate featuring Trump and Rubio.
Rubio joked about Trump's having small hands, adding: "And you know what they say about guys with small hands."
Elster said in his application that he wanted to spread a message that "some features of President Trump and his policies are diminutive."
He wants to include the phrase on the front of T-shirts, with "Trump's package is too small" on the back, followed by a list of policy areas that he says fit that characterization.
In a February 2022 ruling, the U.S. Court of Appeals for the Federal Circuit ruled against the trademark office, saying the denial violated Elster's free speech rights under the Constitution's First Amendment.
Solicitor General Elizabeth Prelogar then asked the Supreme Court to take up the case, saying in court papers that for decades the trademark office has refused to register trademarks that feature the names of living people without written consent.
The Supreme Court in recent years has endorsed free speech rights in the trademark context, suggesting Elster could have a chance of prevailing.
In 2017, the court struck down a prohibition on trademarks that feature disparaging language, handing a win to an Asian American rock band called The Slants. Two years later the court similarly threw out a ban on trademarks based on immoral or scandalous words, ruling in favor of the clothing brand FUCT.