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Nov. 1 (UPI) -- The U.S. Supreme Court is hearing a case Wednesday over the use of former President Donald Trump's name in a trademark that plays off an old sore spot for the 2024 hopeful. "Trump Too Small" is the phrase in question. California attorney Steve Elster is seeking a trademark for the phrase to be emblazoned on a T-shirt, according to Supreme Court documents. Trump is not actively involved in the case.
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The back of the shirt critiques Trump's stances on a number of political issues, stating that he is "Small on" the environment, civil rights, immigrant rights, LGBTQ rights and more.
The question for the high court is whether refusing to grant a trademark if it consists of or comprises a name identifying a particular living individual without their consent is a violation of free speech.
Elster's trademark application was denied for mentioning a living person without their consent.
"The mark criticizes Trump by using a double entendre, invoking a widely publicized exchange from a 2016 Republican primary debate in which Trump commented about his anatomy, while also expressing Elster's view about 'the smallness of Donald Trump's overall approach to governing as president of the United States,'" Elster's attorney explained in a court filing.
The "publicized exchange" refers to a back-and-forth between Trump and Sen. Marco Rubio, R-Fla., who chided his Republican primary opponent for having small hands.
Trump endured a similar insult nearly 30 years before the remarks from Rubio. In a 1988 piece by Vanity Fair editor Graydon Carter, the editor described Trump as a "short-fingered vulgarian."
The Supreme Court has previously fallen on the side of free speech when ruling on other trademark cases. In 2016, it ruled against part of the Lanham Act which would have denied trademark protection for terms that disparage any person, living or dead.
In Justice Samuel Alito's majority opinion, the court said, "Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine."
