Vidal v. Elster
The Supreme Court unanimously ruled that the federal law requiring a living person's written consent before their name can appear in a registered trademark does not violate the First Amendment, reversing a lower court that had sided with the man who wanted to trademark 'Trump too small.'
All nine justices agreed on the outcome, but they divided sharply on how to analyze free-speech challenges to trademark registration rules — leaving future cases without a clear governing framework.
How it got here: The Patent and Trademark Office and its appeal board denied registration; the Federal Circuit reversed, finding the names clause unconstitutional; the Supreme Court agreed to hear the case and reversed the Federal Circuit.
The Case in Depth
What happened
Steve Elster wanted to sell shirts and hats bearing the slogan "Trump too small," a phrase he drew from a 2016 presidential primary debate exchange between Donald Trump and Marco Rubio. When he applied for a federal trademark registration, the Patent and Trademark Office refused, citing a provision of the Lanham Act — called the "names clause" — that prohibits registering any trademark containing a living person's name without their written consent. Elster argued the rule violated his First Amendment right to free speech.
The question before the Court
Does a federal law requiring a living person's written consent before their name can be used in a registered trademark unconstitutionally restrict free speech, even when the mark is intended as political commentary?
The Court's answer
No — the names clause does not violate the First Amendment. All nine justices agreed that the Federal Circuit was wrong to strike down the law, though they divided sharply on the reasoning behind that conclusion.
The five-justice majority, led by Justice Thomas, held that the names clause is content-based but viewpoint-neutral — it applies regardless of whether the use of someone's name is flattering or critical — and that a long history of restricting the trademarking of another person's name, rooted in the common-law principle that a person owns their own name, is sufficient to establish the clause's constitutionality. Because trademark law has always required content-based distinctions without triggering First Amendment concern, and because this specific restriction fits a well-established historical tradition, no further constitutional analysis was required.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Anyone who wants to register a brand, slogan, or product name that includes a living person's name — whether a politician, celebrity, or private individual — still needs that person's written permission. The decision keeps intact a longstanding rule that applies regardless of whether the use is flattering or critical, reinforcing the government's authority to deny trademark registration for name-based marks without consent.
What changes now
Elster may not federally register "Trump too small" under the names clause, and the Federal Circuit's ruling striking the clause down is reversed. The decision is explicitly narrow: the Court did not set a general framework for evaluating content-based trademark restrictions and did not suggest every such restriction needs a historical analogue. Future cases involving newer or less historically grounded trademark registration restrictions will require the Court to address the open methodological questions raised by the concurrences.
What this does not decide
The Court did not set a comprehensive framework for all content-based but viewpoint-neutral trademark restrictions. It also did not decide whether Elster's mark fails for other reasons (such as the "false connection" provision). And it expressly left open whether a content-based trademark restriction without a historical analogue would be constitutional.
Concurrences and dissents
Concurrence — Justice Kavanaugh
Justice Kavanaugh agreed the names clause is constitutional based on its historical grounding, but wrote separately to note that he would not necessarily require such a historical pedigree for other content-based trademark restrictions. In his view, a viewpoint-neutral, content-based trademark restriction might well be constitutional even in the absence of a comparable historical tradition — a question he said the Court could address in a future case.
Concurrence in part — Justice Barrett
Justice Barrett agreed the names clause is constitutional but objected to the majority's reliance on history and tradition as the sole and dispositive test. She argued the historical record does not actually establish a clear common-law analogue for the clause, and that hunting for historical forebears case-by-case is neither sound constitutional methodology nor workable for lower courts. She would instead apply a general standard: content-based trademark registration restrictions are constitutional so long as they reasonably relate to trademark law's purpose of facilitating source identification, a test she concluded the names clause easily passes. Justices Sotomayor and Jackson joined portions of her opinion.
Concurrence — Justice Sotomayor
Justice Sotomayor concurred in the judgment but rejected the majority's history-and-tradition approach as unmoored from First Amendment doctrine and unprecedented in free-speech cases. She would apply a two-step framework drawn from existing precedent: if a trademark restriction is viewpoint-based, it is presumptively unconstitutional and faces heightened scrutiny; if it is viewpoint-neutral, it need only be reasonable in light of trademark law's purpose of helping consumers identify the source of goods. The names clause easily passes that reasonableness test. She criticized the majority's historical inquiry as indeterminate and burdensome for litigants and lower courts.
How the Court got there
The legal reasoning, step by step
- The Court first classified the names clause: it is content-based (its application turns on whether the mark contains a person's name) but not viewpoint-based. Unlike the Lanham Act's disparagement clause — struck down in Matal v. Tam (2017) — and its immoral/scandalous clause — struck down in Iancu v. Brunetti (2019) — the names clause applies equally whether the use of the name is flattering, critical, or neutral. That distinction meant Tam and Brunetti did not control.
- Because the names clause is viewpoint-neutral, the Court faced a new question: does heightened constitutional scrutiny — the most demanding test in First Amendment law, which requires a compelling government interest and a narrowly tailored law — automatically apply to trademark restrictions that are content-based but not viewpoint-based? The majority answered no, pointing out that trademark law has always required content-based distinctions simply to function (e.g., identifying the source of goods), and that this content-based character has coexisted with the First Amendment without controversy since the country's founding.
- Rather than adopt a general framework, the majority looked to the history and tradition of restrictions specifically on trademarking names. Under the common law, a person's name was considered their own property; the law did not allow someone to register another living person's name as a trademark, because doing so could let the registrant exploit the named person's goodwill and confuse consumers about who was actually responsible for a product.
- This common-law principle — that each person owns their own name and may not be shut out from using it by another's trademark — was carried forward into the first federal trademark statute in 1870 and ultimately into the Lanham Act's names clause. The restriction also serves trademark law's core historical purpose: ensuring consumers know who stands behind a product and protecting the reputation that a name represents.
- Finding the names clause firmly rooted in a long-standing common-law and statutory tradition, the majority held it constitutional without articulating a broader rule. The Court explicitly left open whether content-based trademark restrictions that lack a comparable historical pedigree would survive First Amendment challenge, signaling that future cases may require a different approach.
Doctrinal impact
Cases affected by this decision
Distinguishes Matal v. Tam (582 U. S. 218)
Tam struck down a viewpoint-based ban; the names clause is viewpoint-neutral, so Tam does not control here.
Distinguishes Iancu v. Brunetti (588 U. S. 388)
Brunetti struck down a viewpoint-based ban; the names clause is viewpoint-neutral, placing it outside Brunetti's reach.