Supreme Court blocks 'Trump too small' trademark bid referring to crude joke

WASHINGTON — The Supreme Court on Thursday rebuffed a California lawyer's attempt to trademark the phrase "Trump too small," a reference to a crude joke made about former President Donald Trump.

The court ruled unanimously in favor of the U.S. Patent and Trademark Office over its decision to reject the application brought by Steve Elster. In doing so the court tossed out a U.S. Court of Appeals for the Federal Circuit ruling.

Elster said in an email the ruling was "disappointing but not unexpected" and pledged to continue to sell T-shirts bearing the slogan even without the trademark.

Justice Clarence Thomas wrote on behalf of the court that restrictions on people trademarking certain names do not violate the Constitution's First Amendment.

The law in question "is of a piece with a common-law tradition regarding the trademarking of names. We see no reason to disturb this longstanding tradition, which supports the restriction of the use of another's name in a trademark," Thomas wrote.

The “Trump too small” phrase is a reference to a crude joke Sen. Marco Rubio, R-Fla., made about Trump during the 2016 presidential primary. Rubio joked about what he said were Trump’s small hands, adding: “And you know what they say about guys with small hands.”

Elster, an employment lawyer and progressive activist, applied to register “Trump too small” — a double-entendre meant to insinuate a correspondingly small penis — with the trademark office in 2018. The slogan appears on the front of the T-shirt Elster created, with “Trump’s package is too small” on the back.

Elster said in his application that he wanted to spread a message that “some features of President Trump and his policies are diminutive.”

But the trademark office rejected