Vidal v. Elster
The Supreme Court unanimously ruled that a federal trademark law barring anyone from registering a trademark that uses a living person's name without that person's consent does not violate the First Amendment's guarantee of free speech.
The case arose from Steve Elster's attempt to trademark 'Trump too small' — a phrase referencing a 2016 presidential debate exchange — and establishes that the names restriction is rooted in long-standing trademark tradition rather than government censorship of a particular viewpoint.
How it got here: The Patent and Trademark Office refused registration; the Trademark Trial and Appeal Board affirmed; the Federal Circuit reversed on First Amendment grounds; the Supreme Court granted certiorari and reversed the Federal Circuit.
The Case in Depth
What happened
Steve Elster wanted to sell shirts and hats bearing the phrase "Trump too small," drawing on an exchange between then-candidate Donald Trump and Senator Marco Rubio during a 2016 presidential primary debate. When Elster applied to federally register the phrase as a trademark, the Patent and Trademark Office refused, citing a Lanham Act provision that bars registration of any mark containing a living person's name without that person's written consent. Elster argued this rule violated his First Amendment right to free speech.
The question before the Court
Can the federal trademark system block registration of a phrase using a living person's name for political commentary, when that person has not given consent?
The Court's answer
Yes — the Lanham Act's names clause does not violate the First Amendment. The majority found the restriction is viewpoint-neutral: it blocks registration whether a mark praises, mocks, or neutrally uses someone's name, so the strongest constitutional protections against viewpoint discrimination do not apply. And because trademark law has always been inherently content-based by nature, the usual rule that content-based speech regulations are presumed unconstitutional does not apply automatically to trademark registration restrictions either.
Rather than adopting a formal constitutional test, the majority relied on history and tradition: English and American law have long restricted trademarking another person's name, grounded in the principle that a person owns their own name and that consumers need to know who stands behind a product. That tradition, the Court held, is sufficient to show the names clause is compatible with the First Amendment. All nine justices agreed on the outcome, though several wrote separately to argue for a broader doctrinal framework the majority declined to establish.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Anyone wanting to sell political merchandise, apparel, or other goods using a public figure's name as a federally registered trademark still needs that person's written consent. Public figures — from politicians to celebrities to athletes — retain the ability to prevent others from securing exclusive federal trademark rights in their names, protecting both their reputations and consumers who rely on marks to identify who stands behind a product.
What changes now
Elster's trademark registration for "Trump too small" remains denied. The decision is final on the merits but deliberately narrow — the Court expressly left open how to evaluate other content-based, viewpoint-neutral trademark restrictions that lack an equivalent historical pedigree. Four justices wrote separately pressing for a broader doctrinal standard, and that question will likely arise in future trademark-registration disputes involving newer or less historically rooted restrictions.
What this does not decide
The ruling does not establish a comprehensive test for all content-based, viewpoint-neutral trademark restrictions. The Court explicitly left open whether restrictions without deep historical roots would pass First Amendment review, and whether history and tradition alone can resolve future trademark challenges that lack the same long common-law pedigree as the names clause.
Concurrences and dissents
Concurrence — Justice Kavanaugh
Justice Kavanaugh joined the majority's opinion of the Court in full (Parts I, II, and IV) but not Part III, and wrote separately to emphasize that, in his view, a viewpoint-neutral, content-based trademark restriction might well be constitutional even without a deep historical pedigree. He agreed with the outcome and the history-based reasoning for this specific case but signaled he would not require historical grounding as a prerequisite in future cases.
Concurrence in part — Justice Barrett
Justice Barrett agreed that the names clause does not violate the First Amendment but disagreed with two aspects of the majority's reasoning. First, she argued the majority's historical evidence does not actually establish a clear common-law analogue for the names clause — historical sources suggest some courts allowed famous living persons' names to be trademarked. Second, she rejected the use of history and tradition as a free-standing, dispositive test, arguing it would import into trademark law the same confusion courts have encountered applying Bruen to the Second Amendment. Instead, she would adopt a generally applicable standard: content-based trademark registration restrictions are constitutional so long as they are reasonable in light of the trademark system's purpose of facilitating source identification — a test the names clause easily passes.
Concurrence — Justice Sotomayor
Justice Sotomayor agreed the names clause is constitutional but objected to the majority's history-and-tradition test as unmoored from First Amendment doctrine and precedent, and as likely to generate confusion comparable to courts' struggles applying Bruen. She would apply a two-step framework drawn from existing First Amendment case law: if a trademark registration restriction is viewpoint-based, heightened scrutiny applies; if it is viewpoint-neutral, the restriction need only be reasonable in light of the trademark system's purpose of identifying and distinguishing goods. Because the names clause is both viewpoint-neutral and serves that source-identification purpose, she would uphold it under that standard.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether the names clause is viewpoint-based — meaning whether it singles out marks that express a particular perspective on a person. Viewpoint discrimination is the most serious First Amendment violation. The names clause is not viewpoint-based: it blocks registration equally whether a mark praises, mocks, or neutrally mentions someone's name. The Patent and Trademark Office has refused flattering and critical marks alike — 'Welcome President Biden,' 'I Stump for Trump,' and 'Obama Pajama' were all denied on the same grounds.
- Although not viewpoint-based, the names clause is content-based — it applies based on what the mark says (whether it contains a person's name). Content-based speech rules are generally presumed unconstitutional and subject to strict scrutiny — the toughest constitutional test, which requires a very strong government reason and a closely tailored law. But the Court held that presumption does not automatically apply to trademark registration restrictions.
- The reason: trademark law has always worked by looking at what a mark says. Courts have always asked whether a mark identifies a product's source, whether it is generic or descriptive, or whether it copies another's existing mark — all content-based questions. This inherently content-based system has coexisted with the First Amendment for more than a century without ever being seen as constitutionally suspect, so applying strict scrutiny to trademark registration restrictions is not appropriate.
- Rather than applying any standard scrutiny test, the Court evaluated the names clause by looking to history and tradition. English and early American law long recognized that a person holds a property right in their own name — no one else can use it exclusively in a trademark. Federal trademark law dating back to 1870 carried this principle forward. Trademark law's core function of source identification also requires protecting named individuals' reputations, because consumers rely on marks to evaluate the people behind products.
- The Court concluded that the names clause fits squarely within this historical tradition: it protects named individuals' reputations, prevents consumer confusion about who is responsible for a product, and reflects the common-law rule that a person's right to their own name cannot be monopolized by someone else. That historical grounding is sufficient to show the names clause is compatible with the First Amendment, without need for a broader test.
Doctrinal impact
Cases affected by this decision
Distinguishes Matal v. Tam (582 U.S. 218)
Tam's viewpoint-discrimination holding does not govern the names clause, which is viewpoint-neutral.
Distinguishes Iancu v. Brunetti (588 U.S. 388)
Brunetti's viewpoint-discrimination rule left open the framework for viewpoint-neutral trademark restrictions like the names clause.