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posted 2 weeks ago

On November 1, 2023, I proudly became a member of the Bar of the Supreme Court of the United States. As part of the admission ceremony, I had the unique opportunity to attend the oral arguments for the case Vidal v. Elster. This Supreme Court case addresses the intricacies of 15 U.S.C. § 1052, a provision of the Lanham Act that concerns the use of trademarks involving the names of living individuals without their consent. Witnessing the legal proceedings and arguments firsthand provided an invaluable perspective on the complexities of trademark law and its intersection with First Amendment rights.

Now we have the decision issued last week!

In a landmark decision on June 13, 2024, the Supreme Court ruled on the case of Vidal v. Elster, significantly impacting trademark law and its intersection with First Amendment rights. The case revolved around Steve Elster’s attempt to register the trademark “Trump too small,” which the Patent and Trademark Office (PTO) denied based on the “names clause” of the Lanham Act. This clause prohibits the registration of a mark that “consists of or comprises a name . . . identifying a particular living individual except by his written consent” (15 U.S.C. § 1052(c)).

Background of the Case

The controversy began when Elster sought to register “Trump too small” for use on shirts and hats, referencing a 2016 Presidential primary debate exchange. The PTO refused registration, and the Trademark Trial and Appeal Board affirmed this decision, citing the names clause. Elster argued that this refusal violated his First Amendment rights.

Supreme Court’s Ruling

The Supreme Court, in a decision penned by Justice Thomas, held that the names clause of the Lanham Act does not violate the First Amendment​​. The ruling emphasized that while the clause is content-based, it does not discriminate based on viewpoint. Therefore, it is not presumptively unconstitutional.

Key Points of the Decision

  1. Content-Based but Viewpoint-Neutral: The Court distinguished between content-based and viewpoint-based restrictions. While the names clause is content-based, it does not single out any particular viewpoint for suppression. This distinction was crucial in determining the clause’s constitutionality​​.
  2. Historical Context: The decision heavily relied on the historical context of trademark laws, which have traditionally included content-based restrictions to prevent consumer confusion and protect the goodwill associated with trademarks. The Court found that such historical practices do not inherently conflict with the First Amendment​​.
  3. Trademark Law’s Purpose: The ruling underscored the primary purpose of trademark law—to identify the source of goods and prevent consumer confusion. Content-based restrictions in trademark law are deemed necessary to fulfill this purpose and do not equate to government censorship of speech​​.
  4. Precedent and Rational Basis: The Court noted that content-based regulations in trademark law have not historically led to censorship and are reasonably related to the law’s goals. This perspective was crucial in affirming the names clause’s constitutionality without applying heightened scrutiny​​.

Concurrences and Opinions

Justice Kavanaugh, joined by Chief Justice Roberts, concurred in part, agreeing with the overall judgment but suggesting that a viewpoint-neutral, content-based trademark restriction might be constitutional even without historical precedent​​. Justice Barrett, joined by Justices Kagan and Sotomayor, also concurred in part, arguing for a more principle-based approach rather than one heavily reliant on historical analogies​​.

Implications of the Decision

This decision marks a significant moment in the interpretation of trademark law in relation to the First Amendment. By affirming the names clause, the Court has upheld a long-standing aspect of trademark regulation while clarifying the boundaries of free speech within this context.

For businesses and trademark applicants, this ruling reinforces the necessity of navigating trademark applications carefully, especially when they involve names of living individuals. It also underscores the importance of understanding the historical and legal underpinnings of trademark laws to better anticipate how similar disputes might be resolved in the future.


The Vidal v. Elster decision solidifies the role of content-based restrictions in trademark law while ensuring these do not cross into viewpoint discrimination. This balance maintains the integrity of trademark protections without unduly infringing on free speech rights, marking a pivotal moment in the ongoing evolution of intellectual property law.

I have helped countless businesses protect their trademarks in the United States and foreign jurisdictions. I’d like to help you too!



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