'Trump too small.' Supreme Court wary of trademarking a joke made at Trump's expense

WASHINGTON − It all started with a joke about the size of Donald Trump's...hands.

"And you know what they say about guys with small hands," Sen. Marco Rubio, R-Fla., then a Republican presidential candidate said during a campaign stop in 2016. Rubio took a beat before adding: "You can't trust 'em!”

Studiously avoiding the particulars of the cringeworthy moment, the Supreme Court on Wednesday appeared ready to rebuff a California attorney who wants to trademark a reference to the joke so that he may sell t-shirts emblazoned with the words “Trump too small." The applicant, Steve Elster, said the words convey the idea that Trump's "features" and his polices "are diminutive."

Underneath the crude humor is a serious constitutional question for the Supreme Court to hash out: Whether a federal law that prohibits a trademark that includes the name of a living individual without their consent runs afoul of the First Amendment's protection of free speech when the target of the criticism is a public official.

A majority of the justices signaled that while Elster could sell as many "Trump too small" t-shirts as he pleases, the U.S. Patent and Trademark Office was within its rights to deny him a trademark. Several members of the Supreme Court noted the government has a long history of setting boundaries on what can secure a trademark, which significantly limits the ability of competitors to market products with the same words.

"I think we've always allowed that," Justice Elena Kagan told a lawyer representing Elster. "What you can't find is a (previous) case that supports your proposition."

Similar restrictions have "been around in federal law for a long time," Justice Brett Kavanaugh added.

"History here would suggest something like this is appropriate," he said.

The government's trademark office denied Elster's application, pointing in part to the law that bars trademarks that involve a person's name. But the U.S. Court of Appeals for the Federal Circuit backed Elster last year, holding that the law would restrict his freedom of speech and criticism of a public official. The Biden administration – defending the trademark office – appealed the Federal Circuit's decision to the Supreme Court in January.

Trump, who is not a party in the trademark case, ultimately got the last word in the exchange with Rubio.

"Look at those hands," said Trump days later in 2016, holding out his hands for the audience on a debate stage.

“And he referred to my hands, if they are small, something else must be small,” Trump said. “I guarantee you there is no problem. I guarantee.”

This article originally appeared on USA TODAY: 'Trump too small' trademark effort faces tough crowd at Supreme Court