CAFC Deems Section 2(c) Unconstitional As-Applied In "TRUMP TOO SMALL" Refusal To Register

The Lanham Act took another hit in an appeal to the CAFC from a Section 2(c) refusal of the mark TRUMP TOO SMALL for shirts. The Board found that the mark "comprises the name of [former] president Donald Trump without his written consent" and it rejected Applicant Steve Elster's First Amendment challenge to the constitutionality of Section 2(c). [TTABlogged here]. The appellate court reversed, concluding that as applied here, Section 2(c) is unconstitutional because the Government has no substantial interest in "granting all public figures the power to restrict trademarks constituting First Amendment expressions before they occur." In re Steve Elster, 2022 USPQ2d XXX (Fed. Cir. 2022) [precedential].