Bloomberg Law
Can 'Trump Too Small' Be Trademarked?
Nov 3, 2023
Intellectual property litigator Terence Ross and Bloomberg Intelligence Senior Litigation Analyst Jennifer Rie discuss the Supreme Court oral arguments over trademarking 'Trump Too Small', and the US government's attempt to stop the merger of JetBlue and Spirit Airlines on antitrust grounds.
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Quick takeaways
- Trademark law focuses on source identification and preventing consumer confusion, not on freedom of speech.
- The Supreme Court is likely to uphold the denial of the 'Trump 2 small' trademark, which will have broader implications for trademark law and free speech.
Deep dives
US Supreme Court arguments on trademark law
During oral arguments, justices suggested that denying a trademark for a phrase does not violate free speech rights. The court emphasized that trademark law is not about expression, but rather about source identification and preventing consumer confusion. Justices were also concerned that granting a trademark would restrict the speech of others. The case revolves around trademark registration by Joshua Elster for the phrase 'Trump 2 small,' which had been denied by the United States Patent and Trademark Office.
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