Vidal v. Elster

Background

Steve Elster tried to federally register the trademark "Trump too small" for shirts and hats. The Patent and Trademark Office refused under the Lanham Act’s names clause, which bars registration of a mark that uses a living person’s name without written consent. The Trademark Trial and Appeal Board affirmed, the Federal Circuit reversed, and the Supreme Court agreed to decide whether the names clause violates the First Amendment.

Reasoning

The Court framed the core question as whether the names clause unlawfully restricts speech. It held the clause is content-based because it turns on whether a mark contains a person’s name, but not viewpoint-based because it applies regardless of whether the name is flattering or critical. The Court emphasized that trademark law has long depended on content-based rules and that the names clause serves trademark goals—identifying product sources and protecting reputation—so heightened First Amendment scrutiny was not required.

Real world impact

The decision allows the PTO to continue denying federal registration for marks that use another living person’s name without consent, while leaving open that applicants may still use such phrases in commerce. The ruling is narrow and does not announce a comprehensive test for all content-based trademark rules; future cases could require further analysis.

Dissents or concurrances

Some Justices wrote separate opinions proposing different legal approaches—some stressing history and tradition, others suggesting a reasonableness test—yet they agreed with the Court’s ultimate judgment that the names clause is constitutional.