‘First Amendment right to publicly criticize a political figure superseded Trump’s interests of privacy and publicity’
By Ishaan Jain
Like him or not, Donald Trump is a household name and a topic of popular discussion. So much so people want to trademark slogans with his name to sell merchandise.
Surprisingly, a US federal appeals court has recently allowed this. The most notable example was a successful attempt to trademark the slogan ‘Trump Too Small’ to be put on teeshirts for sale to the public.
In 2018, California attorney Steve Elster had applied to register the slogan as a trademark with the US Patent and Trademark Office (USPTO) to be used in various forms of apparel.
However, the USPTO initially rejected the application as it found that the mark could not be registered because Section 2 of the Lanham Act (15 USC1052) bars using the name of a living individual without their consent.
Read: Donald Trump claims support of Indian Americans (September 5, 2020)
Secondly, they found that using his name suggested a false connection with the then President, blocked by 15 USC1052. The Trademark Trial and Appeal Board (TTAB) also rejected Elster’s appeal.
However, the US Court of Appeals for the Federal Circuit has recently overruled TTAB’s rejection of the trademark with an anti-Trump appearance that was evidently given without the former President’s approval and has been by.
The Federal Circuit allowed the registration of the trademark, finding that Elster’s First Amendment right to publicly criticize a political figure superseded Trump’s interests of privacy and publicity.
The court also found that the trademark did not violate Trump’s publicity rights as Elster had no intention of commercially exploiting Trump’s name, but rather make Trump’s policies seem small.
This raises serious questions on the claim to primacy of the two in limiting situations, while in most others, a balance of privacy rights and the right to free speech is the ideal option as they are two sides of the same coin.
Similar to Elster’s defense of free speech was a 2014 federal prohibition ruling that trademarks are not a constitutional violation. The ruling was hailed as a significant victory for the First Amendment.
The Constitution of the United States does not explicitly protect the right to privacy as state and federal laws can limit individual privacy rights. The right to privacy has been carved out of various rights, including the 4th Amendment, 14th Amendment, and the 9th Amendment.
The first step to protecting rights is becoming familiar with the constitutional amendments, federal statutes, and state laws designed to keep private information private. Specifically, there are constitutional amendments that ‘imply’ privacy rights without explicitly spelling them out.
The federal government protects personal information through laws enacted by Congress, with the Federal Trade Commission (FTC) as the primary enforcement agency. Additionally, there are individual state laws that protect privacy rights for US citizens.
Although the specifics of these laws vary from state to state, civil laws defend the right to privacy when a person’s name, likeness, voice, or other personal characteristic is used without consent for the benefit of a different party.
Finally, in regard to Elster’s case, Section 2(c) of the Lanham Act prohibits registration of a mark that consists of a name, portrait, or signature of a particular person without their written consent.
The winning argument that rendered the ‘Trump too Small’ trademark as legitimately acceptable was that no damage was done to Trump’s publicity rights by the trademark, or by Elster.
Though the Civil Tort Law argues that the right to privacy should not be disturbed by conduct that inherently exposes the victim’s intimate life to the public view, less broad protections of privacy are afforded to public figures.
US civil law prioritizes the right to information over the right to privacy of public figures. Moreover, in many cases public figures have almost no right to privacy even when the published information is false.
Steve Elster argued that the ‘Trump Too Small’ trademark intended to convey that certain policies of Trump were diminutive in nature and to reference dialogue from a 2016 presidential primary debate between the former president and Senator Marco Rubio.
Thus, the court ruled that applying a section of the Lanham Act to bar this specific trademark violated the First Amendment right to free speech.
The complex matter remains an issue for future trademarks that may spark controversy as the court did not strike down the provision of the act altogether.
In my opinion, the ruling correctly overturned the USPTO’s rejection of Elster’s appeal, and the USPTO should take no further action against Elster.
It will be interesting to see whether the case, or a similar case, reaches the US Supreme Court in the near future to strike down the provision altogether.
(Ishaan Jain is an 11th grader in the International Baccalaureate Magnet program at Richard Montgomery high School in Rockville, Maryland)