The US Supreme Court has announced its decision to take up the trademark case of Vidal v. Elster. This pivotal case aims to determine whether the application of Section 2(c) of the Lanham Act pertains to political figures violates the First Amendment of the United States Constitution.

The case revolves around Steve Elster’s trademark application for the phrase “Trump Too Small,” which Elster sought to register for use on t-shirts. However, Elster’s application was denied by the US Patents and Trademarks Office. The Trademark Trial and Appeal Board subsequently upheld the denial, citing a violation of Section 2(c) of the Lanham Act. This section prohibits registering a trademark that includes a name, portrait, or signature identifying a specific living individual without their written consent.

Elster decided to appeal the Board’s decision to the US Court of Appeals for the Federal Circuit. The appeals court ruled in favor of Elster, asserting that the denial of the trademark infringed upon his right to free speech. In their ruling, they referenced the Baumgartner v. United States case, emphasizing that “the right to criticize public men” is one of the fundamental prerogatives of American citizenship. The court further argued that the government had no valid interest in suppressing Elster’s political criticism expressed through his trademark.

Additionally, the appeals court raised concerns about the overall constitutionality of Section 2(c) of the Lanham Act. It questioned whether numerous applications of this section could potentially be deemed unconstitutional. The court contended that the statute offered no discretion to the US Patents and Trademarks Office to exempt trademarks that involved parody, criticism, commentary on matters of public importance, artistic transformation, or other First Amendment interests.

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The government, dissatisfied with the appeals court’s ruling, petitioned for a writ of certiorari to the US Supreme Court. In its petition, the government criticized the lower court’s decision and highlighted the fact that Section 2(c) of the Lanham Act solely denied trademark owners the ancillary benefits that accompany registration, such as additional protection against infringers. It cited the case of Iancu v. Brunetti as precedent.

The “consent clause” of Section 2(c), which requires written consent from living individuals to use their names within trademarks, has long been controversial among intellectual property attorneys and First Amendment legal scholars. David G. Barker, a prominent intellectual property attorney, advocated for the removal of the consent clause in a piece for Bloomberg Law. Barker argued that removing the clause would foster a climate of robust debate and diverse viewpoints, particularly during intense ideological battles.

It’s worth noting that the Supreme Court has already deemed the “disparagement” and “immoral/scandalous” clauses of Section 2(a) of the Lanham Act unconstitutional in previous cases, such as Brunetti and Matal v. Tam. However, the Court has yet to address the constitutionality of Section 2(c).

By agreeing to review the Vidal v. Elster case, the US Supreme Court signals its intent to examine the intersection of trademark law, political figures, and First Amendment rights. The outcome of this landmark case will have significant implications for the protection of intellectual property rights and the boundaries of free speech in the United States.