June 13, 2024
Vidal v. Elster, No. 22-704 – Decided June 13, 2024
Today, the Supreme Court held that the Lanham Act’s prohibition on registration of trademarks that include a living person’s name without that person’s consent does not violate the First Amendment.
“We conclude that a tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fits within that tradition.”
Justice Thomas, writing for the Court
Background:
The Lanham Act establishes certain statutory requirements for trademark registration. One requirement is the Act’s “names clause”—no trademark may include “a name, portrait, or signature identifying a particular living individual except by his written consent.” 15 U.S.C. § 1052(c). In 2018, Steve Elster applied to register the mark “Trump too small,” a reference to then-President Donald J. Trump. The U.S. Patent and Trademark Office denied his request because he had not obtained written consent from President Trump.
Elster appealed, and the Federal Circuit reversed, holding that the names clause violated Elster’s right to free speech under the First Amendment. The Federal Circuit explained that the names clause is a content-based restriction, which is subject to heightened scrutiny under the First Amendment. And it held that the names clause does not satisfy heightened scrutiny here because there is no government interest in restricting speech critical of government officials in the trademark context.
Issue:
Whether the refusal to register a mark under the names clause violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.
Court’s Holding:
No. The names clause does not violate the First Amendment because, while it is content based, it is viewpoint neutral and fits within historical tradition.
What It Means:
The Court’s opinion is available here.
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This alert was prepared by associates Daniel Adler and Jason Muehlhoff.
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