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ARTICLE · 04 MARCH 2022

The First Amendment Trumps Another Restriction On Trademark Registrations

Fenwick
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On February 24, 2022, the U.S. Court of Appeals for the Federal Circuit, in In Re: Elster, overturned the Trademark Trial and Appeal Board's (TTAB) refusal to grant a trademark registration on the phrase...

United StatesIntellectual Property
Eric Ball
Eric Ball
Rina Plotkin
Rina Plotkin
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On February 24, 2022, the U.S. Court of Appeals for the Federal Circuit, in In Re: Elster, overturned the Trademark Trial and Appeal Board's (TTAB) refusal to grant a trademark registration on the phrase "TRUMP TOO SMALL" for use on T-shirts. The Federal Circuit held that the Lanham Act's prohibition on the registration of marks including the surname of a living individual unconstitutionally restricted free speech in violation of the First Amendment as applied to this mark.

The U.S. Patent and Trademark Office (PTO) initially rejected Elster's proposed trademark on two grounds: (1) the mark used former President Trump's name without his written consent, in violation of section 2(c) of the Lanham Act; and (2) the mark falsely suggested a connection with former President Trump, in violation of section 2(a) of the Lanham Act. Elster appealed both decisions, and the TTAB affirmed based on section 2(c) grounds. Section 2(c) of the Lanham Act prohibits in relevant part

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