Elster applied to register the trademark "Trump too small," with an illustration of a hand gesture, for use on shirts and hats. The mark referred to a 2016 Presidential primary debate exchange between Donald Trump and Marco Rubio. The PTO refused registration under 15 U.S.C. § 1052(c), which bars registration of a mark that consists of or comprises a name identifying a particular living individual without written consent. Elster argued that this refusal violated the First Amendment.
Issue
Does the Lanham Act's names clause, which bars federal registration of a mark containing the name of a particular living individual without that person's written consent, violate the First Amendment when applied to a viewpoint-neutral but content-based trademark?
Rule
The names clause in 15 U.S.C. § 1052(c) does not violate the First Amendment. Although the clause is content based because it turns on whether a proposed mark contains a person's name, it is not viewpoint based, and a solely content-based trademark-registration restriction need not be subjected to heightened scrutiny when history and tradition show that the restriction is compatible with the First Amendment.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Phoenix, Nora Vale applies to federally register the mark "THANK YOU MAYOR RAMIREZ" for coffee mugs sold by her small gift business. The application identifies a currently serving mayor, but Nora did not obtain the mayor's written consent. She argues the refusal would be unconstitutional because her message is complimentary rather than critical.
If the Patent and Trademark Office refuses registration under the Lanham Act's names clause, which is the strongest constitutional analysis?
Explanation. The majority held that the names clause is content based because it turns on whether a mark contains a person's name, but it is not viewpoint based because it applies whether the use is flattering, critical, or neutral. The Court rejected the argument that the clause becomes viewpoint discriminatory in practice merely because consent may be easier to obtain for praise. It also declined to impose a per se rule of heightened scrutiny on solely content-based, viewpoint-neutral trademark registration restrictions where history and tradition show compatibility with the First Amendment. A longstanding tradition supports restricting registration of another living person's name without consent.