The February decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) held the Office's application of Section 2(c) of the Lanham Act to reject TRUMP TOO SMALL was unconstitutional. Specifically, the CAFC panel held that 'applying section 2(c) to bar registration of [Steve] Elster's mark unconstitutionally restricts free speech in violation of the First Amendment.'
The trademark applicant, Steve Elster, attempted to register the trademark TRUMP TOO SMALL for use on T-shirts, but an examiner refused the application, saying that section 2(c) bars registration of a mark that '[c]onsists of or comprises a name . . . identifying a particular living individual' without the individual's 'written consent.' While Elster argued the mark was 'intended as political commentary,'-particularly, to 'convey[] that some features of President Trump and his policies are diminutive'-the examiner said there is no statutory or 'case law carve
The High Court granted the USPTO's petition in June and argument has now been set for November 1.
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